Ann Brierley & Melissa Chuck v Victoria Police [2018] FWC 4305

Ann Brierley & Melissa Chuck v Victoria Police [2018] FWC 4305 | Case summary | Zoe

[8]

[3] Evidence was given in this matter on behalf of the Applicants by both Ms Brierley and Ms Chuck as well as three other people who had each served as a supervisor or manager of the Traffic Camera Office, Mike Mohammed, Michael Pickering and Brendan Peterson.

[4] Evidence was given for Victoria Police by a number of witnesses working in or around the TCO including; Sergeant of Police Adrian Badaracchi, Superintendent Don Downes, Senior Supervisor Iain Gillanders, Inspector Damien Madden, Senior Sergeant Michael Kelly and Senior Constable Victoria Findlay. In addition, the Hon. Brian Lacy, Barrister, gave evidence for Victoria Police, having been retained by them to provide expert advice on the subject of the applications now before the Commission. In addition, the Commission was assisted through the submissions and documentary materials provided on behalf of each party.

[5] Maurice Addison, solicitor from Maddison and Associates, appeared for Ms Brierley and Ms Chuck, and Brendan Avallone, of Counsel, instructed by Maddocks, appeared for Victoria Police. Permission for each party to be represented in these proceedings by a lawyer was granted by me pursuant to s.596 of the Fair Work Act 2009 (Cth) (the FW Act), with me being satisfied that legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter (s.596(2)(a)).

[6] The precise scope of the Traffic Camera Office is not before me, however it appears uncontroversial that the office is a unit within Victoria Police which is charged with administering the State's regime of traffic infringement notices. Within the TCO itself is the Penalty Review area which in turn is charged with processing applications from the recipients of traffic infringement notices (referred to as Notices) either for the overturning of a Notice on evidential grounds; the withdrawal of a Notice for a variety of reasons including extenuating circumstances unique to the driver; or the reassignment of a Notice to another person, or an unknown person, as a result of information provided by the original recipient.

[7] Mr Lacy's report summarises the operations and structure of the TCO thus:

[14]

[8] The focus of much of the evidence in these proceedings about the Applicants' work concerns several of the bulleted matters referred to above, namely Public Nominations; Taxi Nominations; and Special Circumstances, with one additional matter, Extenuating Circumstances not referenced above. Broadly speaking, "Nominations" refer to the review work of the TCO which is required "when a person returns an infringement notice nominating another person as the driver of the vehicle at the time of the infringement".[4] Public Nominations is a reference to a straight driver to driver nomination, whereas Taxi Nominations refer to those occasions "where a taxi company nominates a driver as the person responsible for a number of infringements".[5] The TCO reviewer is charged with determining whether to accept or reject the nomination which at times requires some investigation given the TCO is dealing with incomplete data or an error in the nomination form. "Special Circumstances" and "Extenuating Circumstances" matters refer to requests made by recipients of infringement notices to have a Notice waived because of their particular circumstances, with a different range of tests to be applied in the case of each type. Special Circumstances and Extenuating Circumstances require TCOs to exercise discretion according to specific guidelines.

[9] Both Ms Chuck and Ms Brierley are engaged as Penalty Review Officers (PROs) within the TCO's Penalty Review area and have been for some years. The employment of each is covered by the VPS Agreement 2016, which commenced operation on 18 May 2016 and has a nominal expiry date of 31 December 2019. Before the VPS Agreement 2016 commenced operation, each Applicant's employment was covered by the VPS Agreement's predecessors, the Victorian Public Service Workplace Determination 2012 (VPS Workplace Determination) and, before that, the Victorian Public Service Agreement 2006 (as varied and extended in 2009) (VPS Agreement 2006).[6]

[10] Ms Brierley and Ms Chuck are each classified under the VPS Enterprise Agreement 2016 at the level of VPS Grade 2, Value Range 2 (referred to from this point as VPS-2.2). The Applicants contend that their positions should be classified at the grade of VPS-3. The parties disagree as to the mix and characterisation of duties performed by the Applicants in their substantive position as PROs; whether those duties are required of their position; and whether those duties are at a VPS-2 or VPS-3 level.[7]

[11] From time to time the Applicants are paid a higher duties allowance to perform different duties in VPS-3 positions, and are paid as such. For Ms Chuck those periods have included between 21 March 2016 to 1 April 2016 and 17 October 2016 to 24 October 2016 when she was promoted to Tolling Team Leader; between 12 February 2017 to 25 March 2017 where she was promoted in order to create and write Training Manuals and from 14 May 2018 ongoing as at the time of the hearing as Nomination Team Leader. Ms Brierley was upgraded to a VPS-3 position between 27 September 2017 to 17 November 2017 and from 4 June 2018 ongoing as at the time of the hearing. There is no dispute that those higher duties warrant payment at that level.[8]

[12] The Traffic Camera Office, and each of the employees in it (including the Applicants in the position of PRO) are required to apply the Traffic Camera Office Penalty Review Guidelines 2015[9] (the TCO Guidelines). The TCO Guidelines are made pursuant to a requirement of the Attorney-General's Guidelines to the Infringements Act 2006, (the AG's Guidelines) in accordance with the Infringements Act 2006 (Vic)[10] which require that each enforcement agency must develop procedures for the conduct of internal reviews of infringement notices.[11]

[13] So far as is relevant to these matters, review applications made to the TCO which are dealt with by the Applicants and other staff within the TCO are in two broad categories; those referred to as Nominations and those reviews which raise either Special Circumstances or Extenuating Circumstances which were discussed above. The processes and procedures for dealing with Nominations and Special or Extenuating Circumstances are dictated by the TCO Guidelines and the Applicants and other TCO staff must refer to the TCO Guidelines when carrying out their reviews.

[14] Consideration of applications for review of traffic infringement notices is performed subject to the requirements of legislation, as well as the TCO Guidelines. One of the matters in dispute in these applications is the extent to which the Guidelines require certain decisions to be referred to more senior officers than the Applicants. While the TCO Guidelines are subject to a Confidentiality Order of the Commission requiring they not be published, it is necessary to refer in this decision to certain relevant parts of the TCO Guidelines in order to properly express the reasons for my findings on key matters, with the relevant parts set out below. For the avoidance of doubt, the Confidentiality Order does not extend to the parts reproduced below or referred to elsewhere in this decision, and is taken to be varied to the extent necessary to allow publication of the relevant parts.

[15] The parts of the TCO Guidelines relevant to this decision covered by the foregoing are:

In relation to Extenuating Circumstances (taken into account as a reason to consider the matter further, or to withdraw an infringement notice);

A definition of "Extenuating" which is not reproduced in this decision;

Clause 32, as follows;

[21]

[16] Ms Brierley started working in the TCO in 2003, first being employed at a classification equivalent to the present VPS-1 level. In 2004 she lodged an internal grievance after forming the view that the position was under classified and was successful in having the position converted to the present VPS-2 level. After expressing interest in becoming a PRO she moved into her present position in November 2009 as a VPS-2. From early 2011 she sought reclassification of her position to VPS-3, believing the role to be in conformity with the relevant descriptors in the VPS Agreement 2006.[13]

[17] An organisational review was commenced in November 2011 which Ms Brierley believed had the potential to impact on the subject of classifications. At around the same time, Ms Brierley formally sought her position to be reclassified to VPS-3. Neither the organisational review which was completed in April 2013 or the reclassification grievance, completed in January 2013, led to a change in Ms Brierley's favour.[14] In February 2013, Ms Brierley commenced a grievance application but was unable to continue with it at the time, owing to a number of factors, but recommenced the matter on 11 May 2015 when she joined with other staff members who submitted a reclassification application.[15] That process passed through a work review assessment completed by an internal officer, Kate Hutchinson (Senior Consultant, Classifications and Review, Human Resource Department). When the affected staff were dissatisfied with the outcome of the work review assessment, a review was completed by another person, Keith Colliver (Manager, Business Services, People Development Command).[16] Mr Colliver's report was completed on 22 August 2016 with him finding that some elements of the VPS-3 descriptors had been met; that the work of the five employees he had reviewed "is on the cusp of a VPS-3" but that such changes as may have occurred in the work were only temporary and should be reconsidered a later point. He also recommended that in recognition of the changes which had occurred to the employees work that a gratuity should be paid to them:

[55]

[29] In dealing with a dispute such as this the Commission is not undertaking an exercise of judicial power but is instead exercising a power of private arbitration, with that power deriving from the parties' agreement to submit their differences for decision by a third party. The resultant arbitrator's award is not binding of its own force but instead its effect depends on the law which operates with respect to it.[30] It is accepted that while not exercising judicial power, the Commission "may legitimately form and act upon opinions about legal rights and obligations as a step in the exercise of its own functions and powers".[31]

[30] The Commission is required to examine whether an enterprise agreement's dispute settlement procedure "requires or allows" the Commission to deal with the dispute. In order to do so, it is necessary to look at the text of the dispute settlement procedure, understood in light of its industrial context and purpose, to determine whether the dispute, properly characterised, falls within it.[32] The scope of a dispute settlement procedure in an enterprise agreement should not be narrowly construed; "to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement."[33]

[31] In characterising the nature of a dispute the Commission is not confined to the application filed to deal with the dispute.[34] The entire factual background is relevant, and may be ascertained from the submissions advanced by the parties on the question of jurisdiction.[35] Further, a dispute may evolve during proceedings in the Commission. It may therefore be necessary in some cases when ascertaining the character of a dispute to have regard to both the nature of the dispute alleged in an originating application and the factual circumstances as they evolve.[36] The character of the dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute.[37] However, the relief sought may cast light on the true nature of the dispute in some cases.[38]

[32] If the Commission has jurisdiction to deal with the dispute, the nature of the relief that the Commission may grant will depend on the limitation in s.739(5)[39] and the agreement of the parties as recorded in their enterprise agreement, provided that such relief is reasonably incidental to the application of the enterprise agreement to which the dispute relates.[40]

[33] Interpretation of an enterprise agreement requires construction of the words of the instrument, with the Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[41] (Berri) setting out the principles for such a task. In that matter, and after an extensive analysis of the subject, the Full Bench summarised the principles to be applied in the following way:

[189]

[58] The parties did not draw the Commission's attention to any particular legislative context of the making of the VPS Agreement 2016. Even so it may be discerned that, other than the fact that the Agreement is made under, and within the context, of the FW Act, it is also within the context of the Victorian legislation that forms and enables the public service of that State, the Public Administration Act 2004 (Vic). While it is the case that the Public Administration Act 2004 is referenced in a number of places in the VPS Agreement 2016, none of those references are apparently relevant to the matters in question in this dispute. That is, it does not appear to be intended that the provisions of the VPS Agreement 2016 relating to the classification of a particular employee are to be either read in conjunction with or to give effect to the Public Administration Act 2004. Further, while the VPS Agreement 2016 makes reference to other legislation as well, none of those references appear relevant to the resolution of Ms Brierley or Ms Chuck's circumstances.

[59] The VPS Agreement 2016 is expressed to operate from 18 May 2016 and has the nominal expiry date of 31 December 2019.[60] At the time the application was made for the approval of the Agreement, the Applicant, being the State of Victoria put forward that the relevant reference instrument for consideration of the Better Off Overall Test was the Victorian Public Service Award 2005 [Transitional].[61] The VPS Agreement 2016 sits within the legislative context referred to earlier, which is to the effect that it is made and approved under the FW Act and applies to any Victorian Government public service body formed under the Public Administration Act 2004.

[60] While providing employment conditions of general application it also provides special wages and conditions for particular agencies or clusters. For example, the VPS Agreement 2016 provides for wages for the Courts with a separate classification structure, as well as providing for wages and classifications in many other settings, including legal officers, allied health professionals and scientists, housing services, custodial and corrections employees, fisheries courts and police custody officers, child protection practitioners and youth justice workers and forensic officers.

[61] The diversity of provisions shows the VPS Agreement 2016 plainly has application across what are likely to be many agencies, hundreds of workplaces and tens of thousands of employees.

[62] Other industrial context to the formation of the VPS Agreement 2016 includes not only the formation of the VPS Award which came about through a decision of the Full Bench in August 2016 after application by the CPSU and with the consent of the other parties,[62] as well as the Award's antecedents, including earlier enterprise agreements and the VPS Workplace Determination. The VPS Award was prescribed to operate from 3 October 2016. No party in this matter drew the Commission's attention to those earlier enterprise agreements or the Workplace Determination as providing relevant context to the construction of the clauses in question in this matter.

[63] Simply because of the dates of making and commencement of the VPS Award being after the approval of the VPS Agreement 2016 (approved on 18 May 2016), the provisions of the VPS Award, referred to by Victoria Police, cannot have any contextual relevance to these proceedings, notwithstanding that the classification schedule in its predecessor, the Victorian Public Service Award 2005,[63] (Schedule A) is in largely identical terms to Schedule A of the 2016 VPS Award. It is to be further noted that the explanatory schedule appears in neither of the two immediate antecedents to the VPS Agreement 2016, the VPS Workplace Determination 2012[64] or the Victorian Public Service Agreement 2006 [2009 Extended and Varied Version].[65]

[64] After considering the legislative and industrial context of the VPS Agreement 2016 I am satisfied that, save for the breadth of the Agreement's application, there is not any particular context that requires being taken account of and which would influence the determination of the construction of the clauses in question.

[65] The breadth of the Agreement is relevant in as much as it likely means that the VPS Agreement 2016 endeavours to provide, through some general language, conditions which must then be capable of application in a very large number of different settings.

[66] I am satisfied that the construction of the classification structures of the VPS Agreement 2016 is not informed by the provisions of what was the reference instrument at the time of making of the Agreement. That is, I do not see the context of the VPS Agreement 2016 being such as to extend to me adopting the proposition that provisions employed within the Victorian Public Service Award 2005, but not employed within the VPS Agreement mean that somehow the provisions of the Agreement must be read back to those within the Award. Perhaps the wording of the Award in relation to classification structure was well known to the parties at the time of the making of the Agreement; perhaps the propositions contained were contentious or perhaps they were not. In either case, it must be presumed that those who negotiated the Agreement chose not to incorporate them into the VPS Agreement 2016.

[67] There is nothing before the Commission at this time that would cause it to accept that the VPS Award's classification terminology is part of the context and purpose to which the construction task must have regard.

[68] In relation to whether there is any admissible evidence of surrounding circumstances that would either allow the identification of or determination of an ambiguity, the Applicants say there is no ambiguity and the Respondent does not advance that there is. Even so the Applicants, in the form of Ms Brierley's witness statement put forward the aide referred to earlier, in the form of explanatory material from a Victorian Government website. The material contains some, but not complete, similarity to the provisions of the VPS Award 2016. The principal difference is the content of the preamble, with the grade definitions in largely identical terms. While this material could have been posited to the Commission, with the correct supporting oral evidence, as assisting either party's case, it was not advanced in that way. As a result, the Commission is left with there being no admissible evidence of surrounding circumstances that would either allow the notification or determination of an ambiguity within the provisions requiring construction.

[69] These matters being so, the construction of the clauses in question turns wholly on the language of the terms in question.

[70] Clauses 23.2, 23.3, 23.4 and 23.5(a) of the VPS Agreement 2016 are set out above.

[71] Critical to this decision, it is to be noted that clause 23.4(b) enables a movement between Value Ranges after a job sizing review, with that review including "an assessment of the work the Employer requires to be undertaken and the performance of that work by the Employee". Those things - assessment of the work required and the performance of the work by the employee - are in turn to be assessed against the Classification and Value Range Standard Descriptors at Schedule E to this Agreement.

[72] From these matters it may be discerned that the provisions of clause 23 referred to provide a machinery for classification of individual employees, with that machinery drawing on a consideration of two things - the work required to be undertaken and the work as it is performed.

[73] While the term "job sizing review" is not defined in the VPS Agreement 2016, its meaning may be understood both from the words used in the term itself, as well as the words that follow the term in clause 23.4(b); that is, it is a review of a job's "size", or an evaluation of its skill and other demands, taking into account a number of matters, including factors such as the demand-side consideration of the work required to be done, as well the supply-side consideration of how the work is performed by the employee.

[74] The terms "Grade" and "Value Range" are not defined anywhere.

[75] What then is the meaning of the phrase "an assessment of the work the Employer requires to be undertaken and the performance of that work by the Employee"? The phrase "Employer requires" is used in only one place in the VPS Agreement 2016, namely clause 23.4(b) and the term "Employer" is defined in clause 2 in the following way:

[193]

[77] From these definitions it may be discerned that the employer for the purposes of the VPS Agreement 2016 is not any particular person or agency, but is the State of Victoria. The Agreement itself contemplates that the State will act through individuals duly authorised by the Public Administration Act 2004.

[78] While that definition is in orthodox form for a public sector enterprise agreement it hardly resolves the matter before the Commission, in that it could not reasonably be expected that the Commissioner of Police, or whomsoever is the "office holder ... designated to have the functions of a public service body head" is the one who sets, directs and monitors the work being undertaken either by Ms Brierley or Ms Chuck. In any event, such would not be consistent with the evidence before the Commission. Instead the evidence is that the setting, directing and monitoring of the work being performed by either Applicant is from a point very close to each; certainly at the level of their immediate supervisor, who at the time of the hearing was Ms. Findlay, or perhaps at the point of the supervisor's manager, who at the time of the hearing was Mr Kelly. The evidence viewed in totality would not lead reasonably to a conclusion that anyone other than the people holding those front-line managerial positions was involved in setting, directing or monitoring the work performed by either Applicant.

[79] When other parts of the VPS Agreement 2016, which do not have application to the Applicants, refer to decisions being made by certain managers, they usually parse the reference with an alternative to the effect that the decision may be made either by a nominated manager or their delegate. For example, a decision within the Department of Economic Development, Jobs, Transport and Resources planning about the application of a remote Location Allowance in conjunction with a starting salary is to "be endorsed by the Executive Director of the relevant division or his/her delegate".[66] The same decision within the Department of Environment, Land, Water and Planning is to be "to be endorsed by the relevant delegate".[67] In the Independent Broad-based Anti-corruption Commission, approval to work overtime is to be given by the "Manager Surveillance or delegate" or the "Manager Investigations or delegate".[68] While of course the argument can be mounted that the use of different language elsewhere in the Agreement about the making of decisions for and on behalf of the employer should reasonably lead to the conclusion that the absence of the same language in clause 23.4(b) means that the intent is different, such conclusion would be inconsistent both with the industrial context of the VPS Agreement 2016 as well as how work is performed in actuality in the TCO. The industrial context referred to is that mentioned above, to the effect that the scale of the Agreement is across many workplaces covering thousands of employees. The Agreement means to regulate, but not through the unremitting central iron-fistedness of each Public Service Body Head. Instead the industrial context includes the scaled nature of a classification structure with incrementally significantly larger roles with greater managerial responsibility.

[80] In relation to the phrase "the work the Employer requires to be undertaken ..." it is to be noted that the word "require", or variants of it, is used in many places throughout the VPS Agreement 2016. For example:

In clause 12.7 (Discussion of Dispute);

[213]

[83] Consideration both of the language of the VPS Agreement 2016 as well as the evidence leads to the conclusion that when clause 23.4(b) makes reference to a consideration of the "the work the Employer requires to be undertaken" that reference is not to a consideration only of what has been directed through the highest levels of the organisation. Instead the term reasonably includes a consideration of what is required to be undertaken at the point at which the work is performed. The Employer is not, for the purposes of the VPS Agreement 2016 any particular person, but the State of Victoria, acting through its duly authorised servants. The context of the Agreement is that employer-like decisions are made at many different levels. In the absence of a clause in the Agreement that specifies what decisions may be made or not made by the various levels of supervisors, managers and executives, there is no reason on the face of the Agreement to suppose that a supervisor or manager who purports to make a decision of the type involved in these matters is not actually authorised to do so, with the implication that their decision is somehow nugatory or insubordinate.

[84] True it is that the proposition put forward by the Respondent to the effect that work taken on by an employee by their own devices and possibly contrary to the direction of their supervisor or manager cannot reasonably be said to be work required to be undertaken. That is, an employee who merely decided that they were undertaking a particular type of work without the knowledge or consent of their supervisor or manager could hardly later somehow argue that they had been required to undertake that work. The contest in this matter is whether Ms Brierley and Ms Chuck somehow skewed the balance of the work they undertook in such a way as to illegitimately boost their work value. The success of that argument, in favour of the Respondent, aside from the evidence itself, would be dependent upon an acceptance by the Commission that the employer had not been aware of the work being performed by the employees in question and the value it was getting in return, or that it could not be said that it had somehow acquiesced to the establishment of a new local operating practice or procedure.

[85] It is evident, in relation to the construction of clause 23.4(b), the proper meaning of the word "requires" in the phrase "the work the employer requires to be undertaken" is to be found within the sense of the dictionary definition of "require", within which there is a range of possible senses for its use.

[86] While certainly the word as used within the clause allows it to be taken as a circumstance in which the employer, personified by the local supervisor or manager, may have asked or called upon an employee to do something authoritatively, by order or demand, but the word also allows a less formal connotation. Its use within the language of the clause in question enables a finding that the requirement referred to operates at a lower level than the authoritative level and in particular that it operates at the level at which the employer, personified by the local supervisor or manager, has need of or makes use of.

[87] Within the industrial context of this Agreement, both as a whole, as well as the particular clause in question, the phrase "the work the Employer requires to be undertaken" most likely has the connotation of work that the public service body needs or has use of.

[88] The second part of the second sentence of clause 23.4(b) draws attention to "the performance of that work by the employee". There is nothing within the clause or elsewhere within the Agreement which would infer that those words are to be taken as an assessment of how well the employee has performed the work in question and instead the phrase must reasonably only be referring to the work that is actually performed by the employee, in distinction to work which may be described within a job description or operating procedures but is not actually asked to be performed by the employee in question.

[89] In relation to the proposition that the review process is to consider the work the employer requires to be undertaken, clause 23.4(b) is construed as meaning that the job sizing review is to include an assessment of the work that Victoria Police needs or has use of. The reference to the job sizing review to include an assessment of "the performance of that work by the Employee" is construed as meaning that the reference point is of the work actually performed by the employee.

[90] Taking the two elements together, clause 23.4(b) is construed as meaning that the job sizing review is to include an assessment of the work that Victoria Police needs or has use of and which is actually performed by the employee in question.

[91] The second matter of construction is the meaning of Table 1.1 in Schedule E, entitled "VPS Grade Descriptors and Value Range Standard Descriptors - Grades 1 to 4". The function, purpose and use of Schedule E is referred to in two places:

clause 23.3 which provides, so far as is relevant, that;

[216]

[92] At its most elemental level the Schedule is to be relied upon for the purposes of determining the classification of a particular employee. Their work requirements are to be ascertained and an alignment is to be made of those requirements against the grade and value range descriptors set out within the table.

[93] Table 1.1 which, for the purposes of this decision is the table to be given consideration, deals with the first four VPS grades. Grade 1 is not separated into different Value Ranges and neither is grade 4. The reason VPS-1 is not split into different Value Ranges is dealt with in several parts of the Agreement, with it being reasonably clear that the classification is a training grade only and in any event is open to later review (see clauses 4.4 and 23.6). However, there is no apparent reason why VPS-4 comprises only a single Value Range. Table 1.2 deals with VPS-5 and VPS-6 and it is to be noted that each of those grades is divided into two Value Ranges.

[94] There is no apparent explanation either of why there are two different Value Ranges for VPS grades 2, 3, 5 and 6. The best that may be discerned from the draughtsperson's efforts in this regard is that it is for the purpose of dividing each grade in question into lower and higher skill levels, as well as to provide for lower and higher salary progression points which progress and do not overlap. That proposition is discerned from Schedule B which sets out the VPS salary ranges over the life of the Agreement. For example the rates applicable from 1 January 2017 for the grades in question in this matter, VPS-2 and 3, are as follows:

VPS 2;

Value range 1 - $48,489 - $55,377 (across 8 increments);

Value range 2 - $56,361 - $62,267 (across 7 increments);

VPS 3;

Value range 1 - $63,629 - $70,445 (across 6 increments);

• Value range 2 - $71,807 - $77,259 (across 5 increments).[70]

[95] Table 1.1 is divided into 7 different work elements. Inexplicably only the first of those, decision-making, is divided into two sub-elements. The total of 8 elements are as follows:

Decision-making;

Accountability and frameworks;

Innovation and quality;

Communications;

Knowledge and proficiency;

Policy and projects;

Administrative and corporate support;

Operational service delivery;

Technical/specialist.

[96] The descriptors accorded to each of these work features are set out earlier in this decision.

[97] There is consensus between the parties that each of the Applicants is classified at least of the level of VPS-2, Value Range 2 (the short-hand of which is VPS-2.2). The Applicants then submit that their work fits within VPS-3, with much of their work fitting with Value Range 1 (VPS-3.1) and at least some elements fitting into Value range 2 (VPS-3.2). Victoria Police put forward that the Applicants are not consistently or sufficiently working at VPS-3 and, in the alternative, that if they are, such is likely a temporary or transitory situation with such higher work value as may presently be evidenced likely to reduce at some stage in the future, likely after the VIEW system becomes fully operational.

[98] There is not agreement between the parties about the point at which it takes to be classified at a higher level, in this case to a VPS-3. The Applicants' somewhat ambiguous case is to the effect that once they are performing at least some of the duties of VPS-3 a reclassification should follow. They are not precise as to how much additional work is required before one becomes entitled to a reclassification. On the other hand Victoria Police argue that there needs to be a preponderance of work at the VPS-3 level, such that it is their major and substantial employment. They too are not precise about how much additional work is required before an entitlement to be reclassified is achieved, with it ultimately being the case that an examination is required of the major and substantial employment of the employee or its principal purpose or primary function.[71]

[99] Within VPS-2.2 and across the seven elements into which the work descriptors in Table 1.1 are divided, a maximum of 21 descriptors may require consideration. VPS-3.1 provides for consideration of a maximum of 36 descriptors; and VPS-3.2 a consideration of a maximum of 20 separate descriptors.

[100] The zen-like breadth and diversity of those many descriptors leads to the conclusion that there cannot, in the absence of specific drafting on the subject, reasonably have been an expectation that anyone classified at a particular level must demonstrate the performance of every one of the descriptors.

[101] As a result the proper construction of the Schedule E is that an employee is classified according to the grade and Value Range, if applicable, relating to their major and substantial employment, consistent with the principles set out earlier, bearing in mind that the construction of clause 23.4(b) means that the reference point for that employment will be the work that Victoria Police needs or has use of and which is actually performed by the employee in question.

[102] In the course of the hearing, at my request, the parties filed a Supplementary Agreed Statement of Facts, which set out their agreement about the classification descriptors requiring attention in this decision. The Supplementary Statement is reproduced in this decision at Appendix A (modified to record a change made during the hearing). In that document, the parties classified each of the descriptors in VPS-3, Value Range 1 into three relevant categories:

Criteria that the parties agree is required of the position and is performed in fact (REQUIRED) (identified in Appendix A with a tick);

Criteria that the parties agree is NOT required of the position and is not performed in fact (NOT REQUIRED) (identified in Appendix A with a cross);

Criteria that the parties do not agree, with it to be noted that the absence of agreement extends to there being disagreement about even whether the descriptor being required to be performed in order to meet VPS 3, Value Range 1, as well as whether the Applicants perform the work described (NOT AGREED) (identified in Appendix A with the words "Not agreed").

[103] I am grateful to the parties for having indicated these areas of agreed facts. The extensive level of agreement between the parties has enabled the dispute to be narrowed, which in turn leads to a significant reduction in the task involved in deciding the issues remaining unresolved.

[104] From these agreed facts the following may be discerned:

There is agreement that both Applicants are REQUIRED to perform and in fact perform duties within these VPS-3.1 criteria (noting that the numbering referred to below is drawn from that used in the Schedule):

3.1A Decision-making

Accountability and frameworks

Analysis and advice contributes to decision making by others

3.1B Communications

Explains concepts and policies to clients, stakeholders and staff

3.1C Knowledge and proficiency

Uses theoretical knowledge to achieve agreed outcomes in moderately complex work situations

Authoritative in application of processes and policy relevant to the work unit

Knowledge of relevant legislation, regulations, policies and processes

There is agreement that both Applicants are NOT REQUIRED to perform, and in fact do not perform duties within these VPS-3.1 criteria:

3.1A Decision-making

Accountability and frameworks

Determines the work organisation of the work area

Manages budget and resources for the work area

3.1B Communications

May lead a team through activities including individual and team performance management and development

Plans, leads and facilitates information sessions and consultative processes in a range of settings

Draft public communication documents

3.1D Policy and projects

Researches issues and prepares draft reports and briefings within a project plan or policy framework set by others

Conducts projects of defined scope under direction

Obtains, summarises and reports on stakeholder views

3.1E Administrative and corporate support

May lead a corporate support team

Manages team performance through activities such as monitoring and reporting

Monitors and administers straight forward, local contracts and service agreements within a well-defined service delivery framework

3.1F Operational service delivery

Supervises a service delivery team

[105] There are then the "not agreed" matters where the parties disagree both in terms of whether the descriptor is required to be performed in order to meet the VPS-3.1 classification, as well as whether the Applicants perform the work described. The descriptors which are NOT AGREED for both Ms Brierley and Ms Chuck are:

3.1A Decision-making;

Accountability and frameworks

Team leadership may be exercised where appropriate to the role

Exercises professional judgement about the application of rules, or the selection of choices within guidelines

Resolves local operational service delivery problems within guidelines

Reviews decisions, assessments and recommendations from less experienced team members

Innovation and quality

Initiates improvements to procedures within the work area

3.1B Communications

Prepares briefs on sensitive issues for consideration of others

Communicates issues and advocates a preferred case or option to stakeholder

Communicate professional/ technical concepts and advice

Provides communication guidance to less experienced colleagues

Uses persuasion, advocacy, negotiation and motivation skills with clients, providers, staff, peers and managers

3.1E Administrative and corporate support

Maintains corporate databases and completes analysis

3.1F Operational service delivery

Assesses client needs and delivers a range of services in complex situations investigates and assesses actions by individuals or organisations against legislation, rules, regulations and service agreements

[106] In the course of their submissions to the Commission each Applicant also put forward that they performed at least some work under the VPS-3.2 Value Range. While their submissions about which aspects of the VPS-3.2 Value Range were met by each Applicant lacked clarity, I understand this to be a submission that each Applicant meets the requirements of the first part of VPS-3.2A (decision-making/accountability and frameworks) with Ms Brierley meeting the second part of the same descriptor (innovation) and Ms Chuck meeting the requirements of VPS 3.2C (knowledge and proficiency).

[107] As recorded above, the proper construction of the VPS Agreement 2016 is twofold:

an assessment needs to be made of the work that Victoria Police needs or has use of and which is actually performed by the employee in question; and

an employee's work is to be assessed against the benchmarks specified in the Classification and Value Range Standard Descriptors at Schedule E with their classification to be derived according to the grade, and Value Range if applicable, which relates to their major and substantial employment.

[108] It is also the case that a consideration of employee's major and substantial employment does not involve location of a precise point at which it may be said that any particular employee moves from one level to the next. Necessarily, while the examination of an employee's major and substantial work is an objective test looking at their circumstances and that of their employment, being reliant upon employees and their manager's accurately describing the work undertaken and the environment within which it is performed, it is a task which will involve some measure of opinion.

[109] While the agreed facts enable consideration to be given mainly to the descriptors referred to in the NOT AGREED category set out above, some brief consideration of the REQUIRED category is appropriate.

[312]

[114] The Applicants also contend that they meet several of the VPS-3.2 descriptors. While their submissions about which ones were met by each lack clarity, I understand this to be a submission that each meets the requirements of the first part of VPS-3.2A (decision-making/accountability and frameworks) with Ms Brierley meeting the second part of the same descriptor (innovation) and Ms Chuck meeting the requirements of VPS-3.2C (knowledge and proficiency). The evidence does not support that the Applicants meet the requirements of the respective descriptors or indeed any of the other VPS 3.2 descriptors.

[115] In summary, each of the Applicants meets the requirements of at least 11 of the VPS 3.1 descriptors. Five of these are in the REQUIRED category and six in the NOT AGREED category. It is unnecessary for me to establish the point at which this work in aggregation became the major and substantial part of the employment, however I am satisfied that the major and substantial part of the employment of each of Ms Brierley and Ms Chuck is at the VPS 3.1 level.

[116] It is noted that in most of my findings the tests of these individual descriptors had also been established in the Colliver and Lacy reports. While this decision is on the evidence before the Commission, and not the opinions of either Mr Colliver (who did not give evidence in these proceedings) or Mr Lacy (who did), it is to be noted that a strong inconsistency does not emerge between their opinions and the findings made herein.

[117] The question in this decision, for the reasons set out earlier, is ultimately whether it can be said that the major and substantial work of either or both Applicant is VPS-3 classified work. For the reasons set out above, it is clear from the evidence that the major and substantial work of both Ms Brierley and Ms Chuck is at the VPS-3.1 level.

[118] To some extent if the work they perform in the REQUIRED category that meets the VPS 3 criteria is not in aggregate their "major and substantial work" it becomes relevant to consider whether duties performed in the NOT AGREED category moves the preponderance of work to such a point that overall it can be said their major and substantial work is at the level of VPS-3.1.

[119] For the reasons set out in the foregoing analysis, and especially in relation to the impact of the VIEW system, I do not accept that the higher duties elements of the Applicants' work is merely a passing thing and that there is no case to accept that their work is permanently at the VPS-3.1 level. The contention by Victoria Police that these things are temporary is not consistent either with the evidence, or with the time that each has been performing higher duties work. The contention that it is temporary has, in the case of Ms Brierley at least, been around since Mr Colliver completed his report in August 2016. Mr Colliver said at the time that he regarded the growth in work to be temporary until completion of a "post implementation review" pertinent to an earlier organisation review[107] and Mr Lacy said in his report, in May 2018 that post implementation review is in the process of being initiated. Above this evidence, Victoria Police did not elucidate evidence either about what the review would be, or when it would be completed. With respect to all concerned, the time to argue that some ill-defined and imprecisely timed report will ever find that things have changed against the desires of the Applicants has well passed. The evidence before this Commission is sufficiently conclusive - while Victoria Police may have hoped in 2016 that things were only temporary, that hope does not persist into late 2018, and the problems with VIEW have nothing to do with that reality.

[120] Victoria Police put forward an alternative argument to the effect that the public service merit principle precluded a permanent determination in favour of the Applicants:

[314]

[121] The VPS Agreement 2016 uses the word "merit" only twice, both being within Schedule A, dealing with the principles associated with redeployment of surplus employees. Likewise it only uses the word "equity" in two places; one with the context of making determinations about initial base salary points having regard to the gender equity effects of appointments (clause 23.5) and, and relatedly, in Schedule C setting out savings provisions for the introduction of the new classification structure within the Department of Justice and Regulation.

[122] The principles associated with appointment of staff to positions and the ascertainment of their classification are set out within clause 23, the essential parts of which are reproduced elsewhere within this decision. There is no part of that clause which could reasonably read to be a prohibition upon determination of this dispute in the manner sought by the Applicants. Similarly there is no prohibition within clause 12, which is the Resolution of Disputes clause.

[123] The argument put forward by Victoria Police in relation to the public service merit principle is essentially that there is some form of prohibition from the Applicants achieving through a dispute resolution process that which they have not been able to achieve through the merit selection process. There is no basis whatsoever for this argument. Victoria Police's submissions in this regard stand in ultra contradistinction from what might be the fate of a dispute about the dismissal of either Applicant, which most certainly is prevented from agitation under the Resolution of Disputes clause when it says "[f]or the avoidance of doubt, a dispute about termination of employment cannot be dealt with under this clause" (clause 12.2).

[124] Had the drafters of the VPS Agreement 2016 intended that employees bound by the Agreement could not have their disputes about classification raised under the Resolution of Disputes clause and then determined by the Commission they would have said so in the same way that disputes about termination of employment have been so explicitly excised from agitation under the procedure.

[319]

[127] The evidence is imprecise about when each Applicant's work coalesced with the VPS-3.1 descriptors.

[128] Ms Brierley lodged several grievances about her classification, commencing in 2011, and ranging through 2012 and 2013.[109] She was one of the five people who were the subject of the grievance review conducted by Mr Colliver. The antecedents of Mr Colliver's report (which appears to be an internal review of an adverse decision made by another officer on a reclassification request) commenced on 11 May 2015 with Mr Colliver's report being dated 22 August 2016.[110] Mr Colliver assessed the group of people seeking the internal review as being on the cusp of performing at the level of VPS 3.[111] The evidence in these proceedings does not distinguish between the work Ms Brierley now performs and that which she performed in 2015. There is insufficient evidence to make any conclusions about the work Ms Brierley performed earlier than 2015. More likely than not the distinguishing features of Ms Brierley's work as identified in these proceedings were present in 2015. As a result, my finding is that Ms Brierley has been working at the VPS-3.1 since 11 May 2015.

[129] Ms Chuck participated in the antecedent to the Colliver review, being the reclassification request made in May 2015, however for personal circumstances did not participate in the review by Mr Colliver of the decision on that request.[112] Ms Chuck did not formally lodge a grievance about her classification until sometime later. While the Respondent submits there is no valid dispute before the Commission in relation to Ms Chuck stemming from the VPS Determination 2012 (which ended on 18 May 2016), it does not dispute that her grievance stems from that date, being the date that the Determination was replaced by the VPS Agreement 2016. In a similar manner to Ms Brierley, the evidence does not satisfactorily distinguish between the work Ms Chuck now performs and that which she performed in 2016. I am satisfied though that more likely than not the distinguishing features of Ms Chuck's work as identified in these proceedings were present in 2016. As a result, my finding is that Ms Chuck has been working at the VPS-3.1 since 18 May 2016.

At a glance

Court

Decision date

Source

Judgment (463 paragraphs)

Ann Brierley & Melissa Chuck v Victoria Police [2018] FWC 4305 (8 August 2018)

Parties

Legislation Cited (4)

Cases Cited (11)