Commissioner of Police v R - [2024] NSWIRComm 1034 - NSWIRComm 2023 case summary — Zoe

NSWNSWIRComm

Commissioner of Police v R

[2024] NSWIRComm 1034

Industrial Relations Commission (NSW)|2023-11-15

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2023-11-15

Catchwords

(2003) 132 IR 244 Hearne v Street (2008) 235 CLR 125
and ii. return to the Commission, the Commission's files.

Source

Original judgment source is linked above.

Catchwords

(2003) 132 IR 244 Hearne v Street (2008) 235 CLR 125and ii. return to the Commission, the Commission's files.

Judgment (41 paragraphs)

[1]

ndustry State Award [2000] 104 IR 168 Re Public Hospitals Nurses (State) Award (No 4) (2003) 131 IR 17 Secretary of the Department of Education v X [2023] NSWIRComm 1061 State Wage Case 2022 [2022] NSWIRComm 1081 State Wage Case 2023 [2023] NSWIRComm 1121 Category: Principal judgment Parties: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Applicant) Commissioner of Police (Respondent) Representation: Counsel: P Lowson (PSA) M Watts (Commissioner of Police) Solicitors: Crown Solicitor (Commissioner of Police) Other: A McRobert (PSA) File Number(s): 2022/00213646 Publication restriction: 1. Pursuant to s 164A(1)(a)(i) of the Industrial Relations Act 1996 (NSW), until 14 November 2053, or further order of the Commission, whichever is the earlier, the disclosure in connection with these proceedings, of the name, address, picture, or other material that identifies or may lead to the identification in connection with the homicide of Curtis Cheng of the two Special Constables whose names are identified in Sch A to the application for orders pursuant to s 164A of the Act made by the Public Service Association and Professional Officers' Association Amalgamated Union of NSW (PSA) on 15 November 2023, is prohibited. 2. Pursuant to s 164A(1)(c) of the IR Act, until 14 November 2053, or further order of the Commission, whichever is the earlier, publication of the evidence or any other document lodged with the Commission that identifies or may lead to the identification of the Special Constables referred to in Order 1 in connection with the homicide of Curtis Cheng, is prohibited. 3. Pursuant to s 164A(1)(c) of the IR Act, until 14 November 2053, or further order of the Commission, whichever is the earlier, the publication of: a) the evidence identified in the table attached to the Submissions of the Respondent in respect of her application for orders pursuant to s 164A of the IR Act filed on 14 November 2023 with the exception of the document at Tab 1 of Exh PSA 1; and b) Annexure B to the affidavit of Chief Inspector Michael Cruickshank sworn 6 November 2023, is prohibited. 4. Pursuant to s 164A(1)(b) and (c) of the IR Act, if a third party seeks access to the transcript or files of the proceedings, the parties will be notified by the Industrial Registrar. The parties will have five working days to notify any application to the Commission with respect to the third party's request. If no application is made by a party then the Commissioner of Police must then: a) within five working days, or a greater period ordered by the Commission uplift the Commission's files (in so far as is necessary in connection with the third party request); and b) within a further ten working days, or greater period as the Commission orders: i. in so far as they relate to the third party request, provide to the Commission copies of the transcript of the proceedings and of the Commission's files redacted so as to allow for the documents to be provided to the third party in compliance with Orders 1, 2 and 3; and ii. return to the Commission, the Commission's files.

[3]

Introduction

On 21 July 2022, the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("PSA") filed an application with the Industrial Registry seeking to have the Commission make a new award pursuant to s 10 of the Industrial Relations Act 1996 (NSW) ("Act") to be known as the Crown Employees (NSW Police Force Special Constables) (Security) Award. The respondent to the application is the Commissioner of Police ("Police Commissioner").
On 10 August 2023, the Full Bench granted leave to the PSA to amend its application and the content of the new award sought. We will refer to the further amended application for a proposed award as the "Application"; and the further amended proposed award as the "Proposed Award". The Police Commissioner does not oppose the making of a new award. However, the terms of the Proposed Award are contentious with respect to the pay increases sought therein.
The Proposed Award provides for pay increases for Special Constables between 10% and 24.5%. At a high level, these increases are sought by the PSA on two grounds: 1. The work of Special Constables, which has never been the subject of a work value case or been considered as part of any claim for work value salary increases, has historically been undervalued. 2. There has been a significant change to the training, skills and responsibilities of Special Constables that have not been recognised in the rate of pay or the salary structure.
The Application is in the following terms (mark-ups and deletions removed): GROUNDS, REASONS AND PARTICULARS 1. The Applicant is the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("PSA"), a State organisation registered in accordance with Part 4 of the Industrial Relations Act 1996 (NSW). 2. The PSA represents and promotes the interests of its members, including employees employed by the New South Wales state government. 3. The New South Wales Police Force ("NSW Police") employs sworn officers and civilian employees. 4. The PSA represents and promotes the interests of civilian employees of NSW Police, directly on behalf of members, and indirectly to the extent that representing and promoting the interests of members flows on to NSW Police employees generally. 5. For many decades, NSW Police has employed a category of employees known as Special Constables. 6. PSA represents and promotes the interests of Special Constables in relation to industrial matters, conditions of employment and related matters. 7. NSW Police employs approximately 180 Special Constables and Field Supervisors. 8. Special Constables perform duties similar to sworn Police Officers including: a. Patrols; b. Security; and c. Training of Special Constables and Police Officers. 9. Terms and conditions of employment of Special Constables are governed by: … b. Crown Employees (Public Sector - Salaries 2021) Award; c. Crown Employees (NSW Police Force Administrative Officers and Temporary Employees) Award 2009; and d. Crown Employees (NSW Police Force Special Constables) (Security) Award 2018 ("the Special Constables Award") 10. Pursuant to the Special Constables Award the base rate of pay for Special Constables (Security) are as follows: (see Draft Monetary Rates table below) …. 11. The Special Constables Award does not currently set fair and reasonable conditions of employment in that it does not currently reflect changes to the work value of Special Constables, or their contribution to productivity and efficiency improvements. 12. The nominal term of the Special Constables Award has expired. Work Value 13. The work value of the work performed by Special Constables has not ever been assessed for many decades. 14. The nature of the work performed by Special Constables, and/or the skills and responsibility required, has changed. In particular: a. Since June 2018, Special Constables have been required to be trained in, acquire, wear, maintain an annual accreditation in, and use tasers; b. Since 2016, Special Constables have been trained in and are required to use the software programme Web Cops to record events, conduct criminal history checks, vet non-police employees seeking to access worksites, conduct vehicle history checks, and submits intelligence reports; c. Since 2008 until 2018, Special Constables have provided security to visiting dignitaries though the MIST unit; d. Since May 2016, Special Constables have had to undertake and pass annual Active Armed Offender training; e. Since 2015, Special Constables have participated in the Overwatch scheme whereby Special Constables are placed in high visibility areas at to patrol high risk security locations as a visual and physical deterrent for armed offenders; f. Since 2015, Special Constables have undertaken extra duties when placed in counter positions, including all customer service and reception duties; g. Since 2013, Special Constables have had to submit quarterly Accountability Key Responsibilities reports; h. Since 2016, Special Constables have undertaken the CMF, an accountability and audit function that accounts for specific site policy and audit requirements including accounting for that areas arms and appointments, operational safety, and uniform policy requirements; i. Since 2014, Special Constables have participated in regular and random drug and alcohol testing; and j. Since 2014, Special Constables have undertaken gunshot residue testing. 15. Further, or in the alternative, the conditions under which the work of Special Constables is performed has changed. In particular: a. The national security threat level has been set at probable since September 2014; and b. The Active Armed Offender training is premised upon increased threat from armed offenders including terrorists. Productivity and Efficiency 16. Special Constables include Security Management Unit ("SMU") Weapons trainers. 17. The NSW Police utilises Special Constable SMU weapon trainers to provide training thus saving on the employee related costs of operational police weapons trainers. For example: a. A Special Constables weapons trainer is stationed at the Castle Hill complex to assist in the training of all operational staff in the Active Armed Offender training course; b. SMU weapons trainers are used to train new operational police cadets at the Goulburn Police Academy; and c. Special Constables weapons trainers are hired out for a fee payable to the NSW Police to other government agencies such as the NSW Sheriffs. 17A. The police generate income from special constables performing work at user pays sites. Special Case 18. The Applicant relies on the foregoing to establish facts demonstrating special circumstances that render the conditions of employment in the current award no longer fair and reasonable. 19. Further, and in addition, Special Constables perform duties at a higher level to those of sheriff officers. Award Name 19A. The new Award should be called Crown Employees (Special Constables) Award. Conclusion 20. The Award variation a. is necessary to ensure that the salaries of Special Constables appropriately reflects the value of the work performed; b. provides just and reasonable remuneration; and c. maintains the real value of the salaries and allowances paid to Special Constables. Draft Monetary Rates Special Constable Current weekly rate Increase % New Salary NSW Police as at 1 July Constables 2023 10% $1,246.41 - Prob Const. - 1st year of service $1,133.10 [Original claim- $65,037.67 $73,109 16.86%] 10.5% $1,273.18 - Const L2 - 2nd year of service $1,152.20 [Original claim $66,434.59 $75,869 22.28%] 11.77% $1,312.85 - Const L3 - 3rd year of service and thereafter $1,174.60 [Original claim $68,504.54 $78,624 23.92%]

[8]

Agreed Facts

The factual background to the PSA's application is helpfully set out in an Agreed Statement of Facts ("ASOF") relied on by the parties. We have referred to the ASOF throughout this decision in the context of considering the various aspects of the PSA's claim. We extract some of the ASOF below to provide context to the claim and our reasons: "Legislative History of Special Constables 1. Special Constables were historically appointed under the Police (Special Provisions) Act 1901(NSW) (P(SP) Act) and employed pursuant to s 47 of the Constitution Act 1902 (NSW) (Constitution Act). 2. Section 103 of the P(SP) Act historically provided that Special Constables 'shall have, exercise, and enjoy all such powers, authorities, advantages, and immunities' as any police officer of the rank of constable. 3. On 1 December 2014, the Police Legislation Amendment (Special Constables) Act 2013 (NSW) (SC Amendment Act 2013) repealed the P(SP) Act. 4. The SC Amendment Act 2013 inserted section 82L into the Police Act 1990 (NSW) (the Police Act). 5. As at 1 December 2014, section 82L of the Police Act provided the Commissioner of Police (CoP) with the powers: a. to 'appoint a person to the position of non-executive administrative officer (special constable)'; and b. to confer or impose 'on a Special Constable any of the functions of a police officer of the rank of constable, including any of the functions of a police officer that are specified in the Law Enforcement (Powers and Responsibilities) Act 2002'. 6. On 31 October 2017, the Police Act was amended and section 82L was repealed and replaced with section 81G. 7. Section 81G(1) currently provides that the CoP may employ a person under Part 6A of the Police Act as a non-executive administrative employee (special constable). 8. Section 810(3) currently provides that 'without limiting the generality of subsection (2)', the CoP may confer or impose on a Special Constable any of the functions of a police officer of the rank of constable, including any of the functions of a police officer that are specified in the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA). Oath of Special Constables 9. Section 13 of the Police Act currently requires that 'before a person exercises any of the functions of a police officer the person must take the oath or make the affirmation of office as a police officer in accordance with the regulations'. 10. The current form of the oath or affirmation required to be taken by Special Constables and by a police officer under s 13 of the Police Act is at cl 7 of the Police Regulation 2015 (Police Regulation). … Award History of Special Constables 12. The work of Special Constables has never been the subject of a work value decision by the Industrial Relations Commission (Commission) or its predecessors. 13. From 1975 until 1992, Special Constables were covered by the Special Constables, Police Department Agreement No. 2118 of 1975 (1975 SC Agreement). 14. The 1975 SC Agreement had effect from the beginning of the first pay period to commence on or after 1 October 1974 and contained four yearly increments for Special Constables. 15. On 27 November 1992, the Special Constables (Blue Uniform) Police Service Amending Agreement No. 1 of 1992 commenced (1992 SC Agreement). 16. On 22 June 1995, the Commission certified the Police Service of New South Wales Special Constables (Security) Enterprise Agreement (EA208/95) (1995 SC Agreement). 17. The 1995 SC Agreement replaced both the 1975 and 1992 SC Agreements and had effect from the first full pay period to commence on or after 22 June 1995. 18. The 1995 SC Agreement introduced a performance management system for Special Constables. 19. The 1995 SC Agreement set out the conditions of employment for Special Constables from 22 June 1995 until the first full pay period on or after 30 July 1997, at which point, the Crown Employees (Police Service of New South Wales, Special Constables (Security)) Award (1997 SC Award) took effect. 20. The 1997 SC Award replaced the 1975 SC Agreement, the 1992 SC Agreement, and the 1995 SC Agreement. 21. On 22 March 2002, the Commission made the Crown Employees (Police Service of New South Wales, Special Constables ((Security)) Award (2001 SC Award), which rescinded and replaced the 1997 SC Award. 22. The 2001 SC Award introduced the new promotional position of Special Constable (Security), Field Supervisor (FS), above the position of Senior Special Constable (Security) (SSC), with two yearly increments to reflect the introduction of the Field Supervisor position in or around July 2000. 23. On 15 April 2005 the Commission made the Crown Employees (Police Service of New South Wales, Special Constables ((Security)) Award (2004 SC Award), which rescinded and replaced the 2001 SC Award and had effect on and from 5 October 2004. 24. The 2004 SC Award included a new provision on Disciplinary Guidelines, which stated that 'A similar and consistent approach to that outlined in the NSW Police Administrative Officer Discipline Policy Guidelines and Procedures, and the NSW Police Administrative Officer Remedial Performance Program Policy and Procedures, will be applied to Special Constables (Security) employed by NSW Police'. 25. The Commission varied the 2004 SC Award in February 2006 and in March 2006. 26. On 11 July 2008, the Commission made the Crown Employees (NSW Police Force Special Constables) (Security) Award (2008 SC Award), which had effect from 17 March 2008 and rescinded and replaced the 2004 SC Award. 27. The Commission varied the 2008 SC Award in May 2010 and in October 2011. 28. On 31 August 2012, the Commission made the Crown Employees (NSW Police Force Special Constables) (Security) Award (2012 SC Award), which rescinded and replaced the 2008 SC Award. 29. On 21 October 2016, the Commission made the Crown Employees (NSW Police Force Special Constables) (Security) Award (2016 SC Award), which rescinded and replaced the 2012 SC Award. 30. On 22 June 2018, the Commission made the Crown Employees (NSW Police Force Special Constables) (Security) Award 2018 (2018 SC Award), which rescinded and replaced the 2016 Award and had effect from 1 May 2018. 31. On 3 June 2022, the Commission reviewed the Crown Employees (NSW Police Force Special Constable) (Security) Award 2018 (current SC Award). 32. Each of the 1997 SC Award, 2001 SC Award, 2004 SC Award, 2008 SC Award, 2012 SC Award, 2016 SC Award, 2018 SC Award and current SC Award were made by the Commission with the consent of both the Commissioner of Police (CoP) and the Public Service Association (PSA). 33. On 21 March 2000, the Commission made the Crown Employees (Public Sector - Salaries January, 2000) Award (2000 Salaries Award) which was published on 12 October 2001. 34. The 1997 SC Award was listed in Schedule A to the 2000 Salaries Award, and since 2000, salary increases for Special Constables have been achieved through increases to public sector salaries through the various iterations of the Salaries Award. Application of the Crown Employees (NSW Police Force - Administrative Officers and Temporary Employees) Award 2009 (Police Admin Award) 35. Clause 6 of the Police Admin Award provides that the Police Admin Award applies to administrative officers and temporary employees as defined in the Police Act. 36. Since 1 December 2014, Special Constables have been non-executive administrative employees of the NSW Police Force (NSWPF). Security Management Group 37. Special Constables employed by the NSWPF are currently situated within the Security Management Group (SMG). 38. The SMG sits within the Counter Terrorism and Special Tactics Command (CTSTC). 39. The SMG has previously had the following names: a. Security Management Branch (SMB) - 1996 to in or around 2005 or 2006; and b. Security Management Unit (SMU) - in or around 2005 or 2006 to 23 March 2023. 40. In or around 1996 to 1997, the SMB sat under the command of the Sydney District/City East. 41. In or around 2000, the SMB was transferred to sit under the State Protection Group (SPG). 42. In or around July 2008, the SMU was amalgamated to sit under what is now called the CTSTC. 43. From approximately July 2008 until the end of 2017, the SMU sat within the CTSTC. 44. Between 2017 and 23 March 2023, the SMU sat within the Communications and Security Command (CSC). 45. As of 23 March 2023, the SMG moved from the CSC to the CTSTC. 46. As of 9 August 2007, the command structure of the SMG was made up of the following positions: a. One Police Inspector; b. One Police Senior Sergeant. 47. In addition, as of 9 August 2007, there was: a. One Roster Clerk (an administrative employee); b. One Clerk grade 3/4 (an administrative employee); c. One identification Clerk (an administrative employee who provided identification cards at sites). 48. In or around 2016, a Police Superintendent position was added to the SMG command structure. 49. In 2017, the SMG had one Superintendent position, one Police Inspector and two Police Senior Sergeant positions. 50. In 2020, an additional Police Inspector position was added to the SMG command structure. 51. The current command structure of the SMG is as follows: a. One Superintendent - Commander of the SMG; b. Two Inspectors of Police performing the role of Operations Managers; c. Two Senior Sergeants of Police performing the role of Operations Coordinators. 52. In addition there is: a. One Corporate Security Consultant; b. Two general administrative officers (administrative employees); c. One roster officer (an administrative employee); d. One Business Manager (an administrative employee). 53. Further, the SMG currently has the following authorised positions: a. Eight FSs; b. 27 SSCs; c. One Senior Special Constable Training Officer (also known as the education officer); and d. 168 Special Constables. Special Constable Roles, Increments and Progression 54. The 1995 SC Agreement introduced the following increment structure for Special Constables: a. Special Constable (Security) with three yearly increments; b. Special Constable (Security) First Class (SClC) after completing '12 months satisfactory service at the 3rd year Special Constable (Security) level and [where] the Commissioner was of the opinion that the value of the work performed, the results achieved and the manner in which the duties are performed warrant such progression'; and c. Senior Special Constable (Security) with two yearly increments. These positions are described in the 1995 SC Agreement as 'promotional positions which will be filled by way of open competitive selection upon the occurrence of a vacancy'. 55. The structure introduced in the 1995 SC Agreement was adopted in the 1997 SC Award. 56. The current structure for Special Constables is: a. Special Constable (Security); b. Special Constable (Security) First Class; c. Senior Special Constable (Security); d. Special Constable (Security), Field Supervisor. 57. Special Constable (Security) has three yearly increments and progression to the 2nd and 3rd year rate is dependent on the completion of 12 months satisfactory service at the previous year's rate of pay and satisfactory conduct. 58. The first year of service as Special Constable (Security) is a probationary period and the employee's conduct is subject to review and report at 3 monthly intervals. 59. Officers progress to SC1C after the completion of 12 months satisfactory service at the 3rd year Special Constable (Security) incremental level if the 'Commissioner is of the opinion that the value of work performed, the results achieved and the manner in which the duties are performed warrant such progression'. 60. Appointment of an employee to SSC and FS is by application and through a merit selection process. Location of work undertaken by Special Constables 61. Special Constables currently perform duties at the following sites: a. Sydney Police Centre (SPC); b. Police Headquarters - Curtis Cheng Building in Parramatta (PHQ); c. NSWPF Dog Squad (at Menai) (Dog Squad); d. NSWPF Mounted Unit (at Redfern) (Mounted Unit); e. NSWPF Executive Offices (Elizabeth Street, Sydney) (Executive Offices); f. NSWPF Potts Hill Facility (Potts Hill); g. NSWPF Offices at 2 Dawn Fraser Avenue, Olympic Park (2DFA); h. CTSTC; i. The Office of the Director of Public Prosecutions (ODPP); j. NSW Department of Premier and Cabinet (DPC); k. Independent Commission Against Corruption (ICAC); I. NSW Parliament House (Parliament House); m. NSW Government House (Government House). 62. Each site has its own Standard Operating Procedure (SOP) which identifies the specific duties of Special Constables at the site, guidance for the operation of the site and codes and passwords for various equipment used at the site. 63. Special Constables were deployed to perform duties at COVID-19 quarantine hotels and border closure operations as part of NSWPF's response to the COVID-19 pandemic in 2020, as follows: a. five Special Constables were deployed to Operation Border Closure along the Victorian border. These Special Constables assisted NSW Police officers by conducting vehicle checks and reviewing border passes at border closure points; and b. Special Constables performed duties at COVID-19 quarantine hotels within the Sydney Central Business District in the role of 'Contact Officers'. ….. Hours of work and rostering 66. Because each site has different operational requirements, the hours of duty and shift patterns vary between posts. 67. The following posts operate on a 24 hours a day, 7 days a week (24/7) basis: a. SPC; b. PHQ; c. Parliament House; d. Government House; e. Executive Offices; f. Potts Hill. 68. Special Constables work only day shifts at the CTSTC, ICAC, 2DFA, and ODPP. 69. Special Constables work only night shifts at the Mounted Unit and the Dog Unit and this shift is generally from 6:00 pm to 6:30 am. … Appointments 75. Special Constables are required to wear a uniform and are currently required to be armed with the following appointments when in uniform: a. Glock pistol; b. Spare ammunition; c. Taser (also referred to as a conducted electrical weapon); d. Spare taser cartridge; e. Oleoresin capsicum spray (OC spray); f. Handcuffs and a handcuff key; g. Baton. 76. Special Constables can also be appointed with an Individual light armour vest (ILAV). 77. Special Constables are also required to wear or carry at all times: a. a badge; b. warrant card that identifies Special Constables as a member of the NSWPF as defined under the Police Act. 78. A hat badge is also required to be worn at Parliament House and Government House when Special Constables are required to wear the formal Antron cap. Glocks 79. Special Constables were issued with Glock pistols in the early 2000s and this replaced the Smith and Wesson revolver which Special Constables had previously been appointed with. … ILAVs 81. An ILAV is a light armour vest designed to provide protection against pistol, small calibre rifle and shotgun threats, as well as significant resistance to edged weapons. 82. lLAVs are optional and were first made available to Special Constables in or around late 2017 or early 2018. 83. Special Constables who do not wear an ILAV can elect to wear a load bearing vest (LBV). Training of Special Constables Recruit Training 84. In the period from 1990 until 1995, Special Constables completed a two-day recruit training course which included weapons training and 'on the job' training at a post. 85. Between the period of 1995 to approximately 2000, Special Constables undertook a two-week recruit training course which consisted of training in the use of firearms, defensive tactics, relevant legislation and customer service. 86. Between 2002 and 2008, Special Constables undertook a recruit training course which took approximately four weeks to complete. 87. From approximately May 2009, Special Constables undertook a recruit training course which took six weeks to complete. This course included training on the role of a Special Constable, the NSWPF Code of Conduct (Code of Conduct), effective communication within the workplace, the relevant law, use of equipment (including use of x-rays and radios), bomb awareness, fire and evacuation procedures, document writing, firearms, defensive tactics, site training, use of online systems, use of the Enterprise Building Integration (EBI) system (which is the system used to monitor alarms, digital video management and access to certain areas within a site), patrol procedures and occupational health and safety. 88. In 2017, Special Constables completed a recruit training course between five and seven weeks in duration. This course included training in the role of a Special Constable, bullying and harassment, customer service, the drug and alcohol policy, the Code of Conduct, secondary employment, responsibilities under LEPRA, document writing and notebook entries, use of equipment (including use of x-rays and radios), bomb and improvised explosive devices (IED) awareness, site evacuation procedures, use of the EBI system, training in WebCops [sic], computer studies, firearms training and defensive tactics (including the use of tasers). 89. Commencing in 2018, Special Constable recruits undertook a seven week recruit training course. This course included training on the role of a Special Constable, the Code of Conduct, responsibilities under LEPRA, the EBI system, the drug and alcohol testing unit, bomb and IED awareness, document writing and notebook entries, mental health intervention training, the use of WebCops [sic], computer studies, misconduct, firearms and defensive training (including the use of tasers), secondary employment, use of equipment (including use of x-rays and radios), site evacuation procedures, and active armed offender training (AAO). 90. From approximately 2019 to March 2023, Special Constables undertook a 10 week recruit training course. 91. The current training includes the following topics: a. the requirements and expectations of the role; b. providing high quality customer service; c. document writing; d. training on locating and identifying IEDs; e. site evacuation procedures; f. use of equipment (including use of x-rays, radios); g. the Code of Conduct; h. systems operations training, including basic WebCOPS operation; i. EBI training; j. DEFTAC (defensive tactics) training, which includes a live fire shoot, AAO training and training on basic legal knowledge; k. one day of training with NSWPF Prosecutions Command on powers under LEPRA; I. three weeks training on the carrying and usage of firearms; m. eight hours of taser training. … Firearms training and re-accreditation 104. During recruit training, Special Constables undertake approximately three weeks of theory and practical based instruction on how to carry and use their firearm. 105. A requirement to pass the recruit training is the completion of a qualification shoot and a shoot under a stressful situation. 106. Special Constables are required to complete annual firearms accreditation training. The annual accreditation training takes place at SPC or at an off-site shooting range over the course of one day. To obtain their accreditation, Special Constables are required to complete a scored shoot. … Mandatory PETE Modules 110. Special Constables are required to complete Police Education Training Environment (PETE) modules online annually which are deemed mandatory by the CoP. 111. Special Constables can also voluntarily complete additional PETE modules. Duties of Special Constables 112. Because each site has different operational requirements, the tasks performed by Special Constables can vary between sites. The SOPs for each site set out the shift procedures and/or daily activities of each site. 113. On a day-to-day basis, the duties of Special Constables may include, but are not limited to front desk duties, control room duties, traffic box duties, external patrols and Overwatch. However, at some locations, some of these duties are not performed. …. Duties of SSC 142. The main duties of an SSC (in addition to the regular duties of a Special Constable) include, but are not limited to: a. preparing and delivering briefings at the beginning of each shift to ensure that all rostered Special Constables are aware of the requirements for the day; b. contacting the FS to confirm that all Special Constables on the roster are at work and have signed on; c. completing the daily staff rotation sheets at beginning of shift to ensure that all tasks at a site are being performed; d. supervising Special Constables during the shift; e. liaising with staff of private security companies at sites where there are private security guards on site (such as DPC); f. complete a daily activity log (DAL); g. complete observation reports of Special Constables; h. complete Work Health and Safety checklists and reviews for the site; i. completing CMF audits; j. completing AKRs as necessary. Duties of FS 143. The main duties of a FS include, but are not limited to: a. ensuring the effective operation of all sites within the SMG, including by way of maintaining appropriate staffing levels at each site; b. overseeing and maintaining record keeping of each site; c. maintaining projects, portfolios and other specific tasks as required to support the SMG; d. conducting CMF audits as required; e. visiting posts within the SMG to provide support and supervision to SSCs; liaising with internal and external clients and oversee the effective operations of the SMG to ensure professional delivery of services - especially in relation to user pay sites; [f.] monitoring sick leave and performance of Special Constables and SSCs; and ensuring that the SMG and its employees are compliant with legislation as well as NSWPF policies and procedures. …" (Emphasis in the original)
On 25 August 2023, the Full Bench attended site inspections at Parliament House and the Sydney Police Centre ("SPC") ("Site Inspections") in respect of which the parties prepared agreed file notes: Ex P2.
The parties also relied upon a further agreed statement of facts ("FASOF") in respect of an amendment to the Crown Employees (NSW Police Force Special Constables) (Security) Award 2018 ("Current Award") providing for student Police Officers to be paid approximately $1,360 per week (plus superannuation) and receive award-based entitlements, including allowances, pursuant to the Crown Employees (NSW Police Force Administrative Officers and Temporary Employees) Award 2009 whilst studying at the Goulburn Police Academy from March 2024: Ex P3. The FASOF provided that Special Constables are paid their normal salary whilst completing their initial training: FASOF at par 5.

[9]

The parties' evidence and submissions

In support of the Application, the PSA relied upon the following: 1. Two statements of John Anthony O'Reilly, retired Police Superintendent, filed 25 November 2022 and 2 May 2023. 2. An affidavit of Antonio Domenico Saraceno, Field Supervisor, filed 25 November 2022. An exhibit to Mr Saraceno's affidavit was also admitted into evidence. 3. Two affidavits of Nathan Andrew Bradshaw, Industrial Manager of the Justice Team in the PSA, filed 25 November 2022 (first Bradshaw affidavit) and 5 May 2023. The first Bradshaw affidavit included an Exhibit also tendered into evidence. 4. Two statements of Vince Carnevale, Senior Special Constable, filed 25 November 2022 and 5 May 2023. 5. Two statements of Clint Edwin Pressley, Special Constable, First Class, filed 23 November 2023 and 5 May 2023. 6. Two statements of Gary Palmer, Senior Special Constable, filed 23 November 2022 and 5 May 2023. 7. Two statements of Jacob Allan Davison, Special Constable, First Class, filed 23 November 2022 and 5 May 2023. 8. A statement of Benjamin David, Special Constable, filed 5 May 2023. 9. A statement of Marko Petrovic, Organiser in the Justice Team of the PSA, filed 5 May 2023. 10. Two statements of William Atkinson, Senior Special Constable, filed 25 November 2022 and 5 May 2023. 11. A statement of Sean Draper, Special Constable, filed 5 May 2023. 12. Two statements of Fraser McDonnell, Special Constable, filed 23 November 2022 and 5 May 2023. 13. Two statements of Aaron Flockhart, Special Constable, First Class, filed 23 November 2022 and 5 May 2023. 14. A statement of Ronald John Walker, Senior Special Constable, filed 23 November 2022. 15. Two statements of Simon Gilbert, Special Constable, First Class, filed 23 November 2022 and 5 May 2023. 16. A statement of Catherine Figg, Special Constable, First Class, filed 25 November 2022. 17. Three affidavits of Dr Michael Lyons, Senior Lecturer in the Human Resources & Management Program in the School of Business at Western Sydney University filed 25 November 2022, 5 May and 7 June 2023. Each of these attached expert reports by Dr Lyons.
All of the PSA's witnesses were required for cross-examination, except for Mr David, Mr Draper, Mr Davison, Ms Figg and Mr Petrovic. Mr Atkinson and Mr McDonnell were not available for cross-examination. In addition, the PSA relied upon a tender bundle consisting of six volumes of documentary material.
The Police Commissioner relied upon the following witness evidence in respect of the Application: 1. Affidavit of Paul Anthony McDonald, Superintendent of Police, filed 15 February 2023. 2. Affidavit of Dean Smith, Chief Inspector of Police, filed 15 February 2023. 3. Affidavit of Linda Bradbury, Superintendent of Police, filed 15 February 2023. 4. Affidavit of Peter Glynn, Detective Superintendent of Police, filed 15 February 2023. 5. Affidavit of Kate Croft, Constable of Police, filed 15 February 2023. 6. Affidavit of Renee Hammens, Constable of Police, filed 15 February 2023. 7. Affidavit of Matthew Francis, Detective Chief Inspector of Police filed 15 February 2023.
Each of the above witnesses' affidavits included an exhibit which was also tendered into evidence. In addition, the Police Commissioner relied upon: 1. An affidavit of Martin O'Brien, Associate Professor and MBA Director at the Faculty of Business and Law, School of Business, University of Wollongong, sworn 30 May 2023. Associate Professor O'Brien's affidavit annexed his expert report ("O'Brien report"). 2. Supplementary report of Associate Professor O'Brien filed 15 August 2023 ("O'Brien supplementary report").
All the Police Commissioner's witnesses were required for cross-examination, except for Chief Inspector Francis.
In addition to the statements and affidavits referred to above, the parties adduced a large volume of other documentary evidence. We have referred to that evidence as required in this decision.
With few notable exceptions addressed in this decision, the factual matters relied upon by the parties through the lay witnesses' evidence were largely uncontested. The parties' experts had divergent views with respect to the key issues in contest in the proceedings. In the context of considering the expert evidence of the parties, we have had regard to the principles espoused in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 ("Makita"), accepted by the plurality in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 (at 604) and adopted in Jenkins v Secretary of the Ministry of Health on Behalf of Nepean Blue Mountains Local Health District [2023] NSWIRComm 1045 (at [112]-[122]). We note in particular the accepted principle there is no obligation to accept an expert's opinion about a particular matter. As stated by Heydon JA in Makita at [87]: "There is no doubt about Professor Morton's authority, experience, qualifications and skill. It is also the case that Professor Morton's report is quite lengthy and detailed. But, given that the court is not obliged to take the opinion of an expert as conclusive even though no other expert is called to contradict it, can it be said that Professor Morton's report goes beyond a series of oracular pronouncements? Does it usurp the function of the trier of fact? More vitally, did it furnish the trial judge with the necessary scientific criteria for testing the accuracy of its conclusions? Did it enable him to form his own independent judgment by applying the criteria furnished to the facts proved? Was it intelligible, convincing and tested? Did it go beyond a bare ipse dixit? Did it contain within itself materials which could have convinced the trial judge of its fundamental soundness?"
The parties provided the Commission with detailed written submissions as follows: 1. The PSA's final submissions filed on 1 November 2023 ("PSAS") and in reply filed 14 November 2023 ("PSASR"); and 2. The Police Commissioner's final submissions filed 8 November 2023 ("PCS").
The parties addressed the Commission with oral submissions on 15 November 2023.
After the Full Bench reserved its decision, it invited further submissions from the parties in respect of amendments to the Act introduced on 15 December 2023. Those submissions were received as follows: 1. The PSA's supplementary submissions filed 9 February 2024; 2. The Police Commissioner's supplementary submissions filed 1 March 2024; and 3. The PSA's supplementary submissions in response filed 8 March 2024.

[10]

Legislation

Section 10 of the Act empowers the Commission to make awards "setting fair and reasonable conditions of employment for employees". Section 17 empowers the Commission to vary or rescind an award, although it may only do so after the nominal term of the award if it considers that it is not contrary to the public interest to do so: s 17(3)(d). The nominal term of the Current Award has expired: cl 49.3.
Section 146(2) of the Act provides that the Commission must take into account the public interest in the exercise of its functions and, for that purpose, must have regard to the objects of the Act contained in s 3 and the state of the economy of New South Wales, the likely effect of its decisions on that economy and "the fiscal position and outlook of the Government and the likely effect of the exercise of the Commission's function on the position and outlook".
The term "public interest" is not defined in the Act. In O'Sullivan v Farrer (1989) 168 CLR 210 ("O'Sullivan") the majority observed (at p 216): "Indeed, the expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable...given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view': Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR at p 505, per Dixon J."
This passage from O'Sullivan has been cited with approval by the Commission in several cases: see KU Children's Services (Other Than Teachers) (State) Award 1998 [2000] NSWIRComm 94 at [92]; Elura Mine Enterprise (Consent) Award 2001 [2003] NSWIRComm 218 at [140]; Kellogg (Aust) Pty Ltd v National Union of Workers, New South Wales [2003] NSWIRComm 167 at [64].
The objects of the Act are set out in s 3, which for present purposes relevantly provides as follows: 3 Objects The objects of this Act are as follows - (a) to provide a framework for the conduct of industrial relations that is fair and just, (b) to promote efficiency and productivity in the economy of the State, … (e) to facilitate appropriate regulation of employment through awards, enterprise agreements and other industrial instruments, (f) to prevent and eliminate discrimination in the workplace and in particular to ensure equal remuneration for men and women doing work of equal or comparable value, … (i) to encourage strategies to attract and retain skilled staff where there are skill shortages so as to ensure effective and efficient delivery of services."
The Police Commissioner submitted that that expression "to attract and retain skilled staff" in s 3(i) is not enlivened in this matter, given Special Constables are not required to have pre-existing qualification, training, experience, or demonstrated skills to be considered for appointment. Further, she submitted a distinction needs to be drawn between "skill shortages" and "staff shortages", with s 3(i) only engaged where the former can be established. She argued that there can be no skill shortages for Special Constables, given the lack of qualifications and skills required to successfully apply for the role.
Whether there is a skill shortage will depend on an analysis of the circumstances of each case. In this matter, we have found that there is insufficient evidence to conclude that there is a skill shortage affecting Special Constables for reasons we have set out below at [232]-[244].

[11]

Wage Fixing Principles

To provide guidance as to the making or varying of awards the Commission has over the years developed Wage Fixing Principles ("WFPs"), which were most recently re-affirmed by the Full Bench in State Wage Case 2023 [2023] NSWIRComm 1121 at [14]: see also State Wage Case 2022 [2022] NSWIRComm 1081 at Annexure A. Those principles relevantly provide as follows: 1. Preamble 1.1. These principles have been developed to accommodate the changing nature of the jurisdiction of the Industrial Relations Commission of New South Wales (the "Commission") under the Industrial Relations Act 1996 ("the Act") in light of the creation of a national system of private sector employment regulation, relevantly established by the Industrial Relations (Commonwealth Powers) Act 2009, the Industrial Relations Amendment (Consequential Provisions) Act 2010, the Fair Work Act 2009 (Cth) and the Fair Work (State Referral and Consequential and Other Amendments) Act 2009 (Cth). 1.2. The four primary aims of these principles are: 1.2.1. to provide a framework under which wages and employment conditions in the government and local government sectors of New South Wales remain fair and reasonable in accordance with the requirements of the Act, and economically sustainable having regard to the obligation of the Commission to take into account the public interest and, in doing so, having regard to the objects of the Act and to the state of the economy of New South Wales and the likely effect of the Commission's decisions on that economy; 1.2.2. to provide a framework that accommodates the interests of employers and employees and their representatives and ensures consistency of approach, certainty and predictability as to the principles that are to operate in respect of the fixation of wages and the setting of employment conditions; 1.2.3. to provide a framework in which all operative and non-operative awards within the Commission's jurisdiction are maintained up to date in respect of rates of pay and allowances; and 1.2.4. to protect the low paid. 1.3 Movements in wages and conditions must fall within the following principles. … 8. Arbitrated Case 8.1 General Any claim for increases in wages and salaries, or changes in conditions in awards, other than those allowed elsewhere in the Principles, will be processed as an Arbitrated Case by a Full Bench of the Commission unless otherwise allocated by the Chief Commissioner. In determining such an application, the Commission shall, subject to the relevant provisions of the Act, do so in accordance with the following criteria: 8.2 Work Value Considerations (a) 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. The strict test for an alteration in wage rates is that the change in the nature of the work should constitute such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification. (b) In addition to meeting the test in (a), a party making a work value application will need to justify any change to wage relativities that might result not only within the relevant internal award structure but also against any external classification to which that structure is related. There must be no likelihood of wage leapfrogging arising out of changes in relative position. (c) The foregoing circumstances are the only ones in which rates may be altered on the ground of work value and the altered rates may be applied only to employees whose work has changed in accordance with this Principle. (d) In applying the Work Value Changes Principle, the Commission will have regard to the need for any alterations to wage relativities between awards to be based on skill, responsibility and the conditions under which work is performed. (e) Where new or changed work justifying a higher rate is performed only from time to time by persons covered by a particular classification, or where it is performed only by some of the persons covered by the classification, such new or changed work should be compensated by a special allowance which is payable only when the new or changed work is performed by a particular employee and not by increasing the rate for the classification as a whole. (f) The time from which work value changes in an award should be measured is the date of operation of the second structural efficiency adjustment allowable under the State Wage Case 1989 (1989) 30 IR 107 or the last work value inquiry or the date of a consent award where the parties have agreed pursuant to a consent award the wage increases reflect increases in work value, whichever is the later. (g) Care should be exercised to ensure that changes that were, or should have been, taken into account in any previous work value adjustments or in a structural efficiency exercise are not included in any work evaluation under this Principle. (h) Where the tests specified in (a) are met, an assessment will have to be made as to how that alteration should be measured in monetary 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 work or the date of a consent award where the parties have agreed pursuant to a consent award that the wage increases reflect increases in work value. (i) The expression "the conditions under which the work is performed" relates to the environment in which the work is done. (j) The Commission will guard against contrived classifications and over-classification of jobs. (k) Any changes in the nature of the work, skill and responsibility required or the conditions under which the work is performed, taken into account in assessing an increase under any other Principle of these Principles, will not be taken into account under this Principle. (l) In arbitrating an application made under this Principle, the Commission is required to determine whether or not future State Wage Case general increases will apply to the award. 8.3 Productivity and Efficiency Considerations 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. 8.4 Special Case Considerations A claim for increases in wages and salaries, or changes in conditions in awards, other than those allowed elsewhere in the Principles, and which is not based on work value and/or productivity and efficiency pursuant to this Principle, will be processed as a special case in accordance with the principles laid down in Re Operational Ambulance Officers (State) Award [2001] NSWIRComm 331; (2001) 113 IR 384 and the cases referred to in that case at [165]-[168]. (Emphasis in original)
In the Applications for Variations to Crown Employees (Police Officers - 2017) Award and Paramedics and Control Centre Officers (State) Award [2021] NSWIRComm 1040 ("2021 Police and Paramedics Salaries case"), the Full Bench stated at [29]-[31]: "The Wage Fixing Principles are in the nature of guidelines. They do not have the force of statute, and cannot add to and do not detract from the Commission's jurisdiction under the Act. At the same time, the Wage Fixing Principles derive their utility from their consistent and logical application to award proceedings brought before the Commission. We note and adopt the following observations of the Full Bench in State Wage Case 2010 (2010) 201 IR 155; [2010] NSWIRComm 183: '87. We agree with the submission of the DPE that the Wage Fixing Principles have served the Commission and the parties well over long periods of time. The rationale underpinning the Principles has not fundamentally changed. The Principles provide a coherent set of rules that ensures consistency of approach by the wage fixing tribunal and certainty and predictability in respect of the fixation of wages and the setting of employment conditions. They also ensure that employment conditions are regulated in a way that is economically sustainable.' The statement by the Full Bench in Public Sector Salaries No 2 that the applications in that case 'must be brought within the Wage Fixing Principles' should not be taken as elevating the Wage Fixing Principles beyond their proper status. The Full Bench was there confirming that it saw no reason why the Commission ought to depart from its usual practice of having regard to the Wage Fixing Principles in determining the Applications in accordance with the Act. We are similarly of that opinion in these proceedings."
We agree with those statements of principle.

[12]

Approach to the making or varying of awards

The approach that the Commission should adopt in making or varying awards has been considered in numerous Full Bench decisions. The principles which arise from those cases were conveniently summarised in 2021 Police and Paramedics Salaries case at [32] as follows: "(1) Whether the conditions of employment in the award are fair and reasonable is a primary test for evaluating whether an award should be altered: Re Operational Ambulance Officers (State) Award (2001) 113 IR 384; [2001] NSWIRComm 331 at [164]. (2) Awards of the Commission are presumed to set fair and reasonable terms and conditions of employment: City of Sydney Wages/Salary Award 2014 (2014) 247 IR 386; [2014] NSWIRComm 49 at [12]. (3) The terms 'fair' and 'reasonable' in s 10 of the Act import a requirement that the conditions of employment set represent a proper and proportionate balance between the entitlements afforded employees and the interests of those employing them: City of Sydney Wages/Salary Award 2014 at [19]. (4) In a contested case, the onus falls on the applicant to make out a case for an alteration to an award: Re Pastoral Industry (State) Award (2000) 104 IR 168; [2000] NSWIRComm 27at [77]. (5) In a special case the applicant bears the onus of persuading the Commission that the application satisfies a dual test: that the terms of the award sought constitute fair and reasonable conditions of employment and that the matter in question has 'special attributes' or is 'out of the ordinary' so as to take the matter outside the restrictions which otherwise apply under the Wage Fixing Principles: Re Operational Ambulance Officers (State) Award at [166] and [168]; City of Sydney Wages/Salary Award at [16]. (6) The applicant must meet the ordinary onus to make out its case. In a special case the applicant does not bear a higher onus or standard of proof: Re Pastoral Industry (State) Award at [73]; Re Operational Ambulance Officers (State) Award at [165] and [168]. (7) The onus borne by a party was described by Kite AJ in Transport Industry - General Carriers Contract Determination (2016) 257 IR 294; [2016] NSWIRComm 3 in these terms: '34. It has long been recognized that Industrial Tribunals are in a different position to the general courts. The duty of the Commission is to make an award or determination which prescribes fair and reasonable rates and conditions. In doing so the Commission is not bound by the rules of evidence or to act in a formal manner but "is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms." See s 163 (1)(c) of the Act. 35. The various authorities referring to the 'onus' born[e] by a party are to be understood in that context. There must be information before the Commission which allows it to be satisfied that the determination or award, if made, will provide just and reasonable rates and conditions. The assessment of the adequacy of that material will vary according to the nature of the case, including the degree of consent, before the Commission: see In re Butchers, Wholesale (Cumberland) Award 1971 AR 425 especially at 437- 440.' (Emphasis in original) (8) The Commission should have regard to all factors relevant to the determination of the general claim including economic considerations and then make a global assessment of what is a fair and reasonable wage to be determined in the circumstances. In this context, the state of the economy, including fiscal considerations, will be taken into account in the overall assessment but will not be determinative of the Commission's decision: Crown Employees (Police Officers - 2009) Award (No 2) [2012] NSWIRComm 104 ('Police No 2') at [72], citing Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2004) 133 IR 254; [2004] NSWIRComm 114 at [432], in which the Full Bench observed: '...The economic and financial position of the State and the effects of our decision on the New South Wales economy have played a significant role in our decision, but not a determinative one. It is our statutory duty to fix fair and reasonable rates of pay and conditions. In a matter, such as this one, where a compelling basis for increases in rates of pay has been demonstrated, then the Commission must give recognition to that conclusion even though it may temper the final result in recognition of economic considerations. The terms of s146 of the Act require no more than this, particularly in the light of the paramount requirements of s10 of the Act. …' (9) The Commission must attempt to fix rates which will be just and reasonable rates at the time when the award commences to operate and which, unless unforeseeable happenings occur, will continue to be just and reasonable during the term of the award: Re Crown Employees (Teachers) Award [1964] AR 463 at 482-483, cited with approval in Police No 2 at [78]. (10) In this regard, it is appropriate for the Commission to have regard to economic considerations, including the changing value of money over time, when deciding the amount of any 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 or are forecast during the term of the award to be made: Re Crown Employees (Administrative and Clerical Officers State) Award and other Awards (No 2) (1993) 52 IR 243, cited with approval in Re Operational Ambulance Officers (State) Award at [167]. See also Police No 2 at [121]."

[14]

Weekday and Weekend Allowances

The current base salaries of the Special Constables pursuant to the Current Award are set out in par 20 of the Application.
In addition to the base salary, all full-time Special Constables receive payment of an allowance of $77.25 per week for working between 3pm and 7am pursuant to cl 18 of the Current Award ("Weekday Allowance"). Special Constables are generally rostered on a 12-hour shift, meaning they will always be rostered at some point between 3pm and 7am and receive payment of the Weekday Allowance. In addition, Special Constables receive $218.35 per week by way of a Weekend Shifts Allowance, as provided for by cl 11 of the Current Award ("Weekend Allowance").
Collectively, the Weekday and Weekend Allowances add approximately $15,424.41 per year to the annual salary of full-time Special Constables. This is significant in the scheme of the salaries payable to Special Constables. The Weekday and Weekend Allowances constitute approximately an additional 25% to the remuneration for Special Constables in their first year of service and about 19% in respect of Field Supervisor 2nd year of service increment.
In respect of the Weekend Allowance, cl 11 of the Current Award provides: "Except as provided for under clause 19 Shift Allowances - Part Time and Casual Officers of this award, full time Special Constables (Security) who are required from time to time to work their ordinary hours of employment on both Saturday and Sunday will be paid an allowance per week as set out in Item 2 of Table 2 - Other Rates and Allowances, of Part B, Monetary Rates, which will be in addition to their ordinary rate of pay in accordance with the rates contained in this clause. Provided that where an officer is absent on Sick Leave for a Saturday or Sunday shift, the above allowance will be reduced by one half for each shift or part of a shift so absent. Except as provided above and in clause 20, Overtime of this award, such additional sum will be part of the ordinary rate of pay for all purposes of the employment." (emphasis added)
The Weekend Allowance is paid to full-time employees irrespective of whether the Special Constables are required to work weekends. Some, but not all of the sites at which Special Constables work, require weekend work. There are four sites where no weekend work is performed. The Current Award does not otherwise provide for an additional payment when full-time Special Constables are required to work weekends, Afternoon or Evening shifts. In effect, the Weekday and Weekend Allowances "roll-up" a loading for being a shift worker and the allowances that might otherwise be payable when required to work unsociable hours.
Part-time and casual employees are not entitled to the Weekday and Weekend Allowances. Part-time and casual employees are instead entitled to shift allowances pursuant to cl 19 of the Current Award as follows: 1. Afternoon Shift - commencing between 10 am- 1 pm - 10% 2. Afternoon Shift - commencing between 1pm- 4pm - 12.5% 3. Evening Shift - commencing between 4 pm- 4 am - 15% 4. Evening Shift - commencing between 4 am- 6 am - 10%
Depending on the shifts worked by a part-time or casual employee, they may be better or worse off than they would be if the Weekday and Weekend Allowances were paid to them proportionately. For example, if a casual employee works only on weekdays, excluding casual loading, they will be paid less for the same work as a full-time employee working the same hours. Where part-time or casual employees can be worse off when doing the same work as full-time employees, a question arises as to whether the making of the Proposed Award is consistent with the Act's objective to prevent and eliminate discrimination in the workplace and in particular to ensure equal remuneration for men and women doing work of equal or comparable value: s 3(f). Traditionally in Australia, women are more likely to engage in work on a part-time or casual basis. People with carer's responsibilities are more likely to seek casual and part-time employment, and are more likely to be women: Re 4 Yearly Review of Modern Awards - Family Friendly Working Arrangements (2018) 276 IR 249 at [392] points 5, 6 and 7; Re Metropolitan Fire and Emergency Services Board (2019) 284 IR 239 at [182]-[185]. This was not a matter explored at the hearing but is a matter the Commission must resolve prior to making the Proposed Award or an alternative award. We direct the parties to confer with respect to the question of whether the allowances ought to be paid to part-time and casual employees, and the parties will be provided with an opportunity to address the Full Bench in respect of this issue.
The allowances provided for in the Current Award in respect of shift and weekend work can be compared with the Crown Employees (Police Officers - 2021) Award ("Police Award"). The Police Award provides that Non-Commissioned Officers will: 1. in addition to their salaries, be paid an allowance, described as a loading of 11.5% of their base salary. The allowance is described as "being a loading for work performed on weekends, shift work, recall to duty and other incidents of employment not covered elsewhere in this Award, and including a Loading formerly paid on Annual Leave": cl 40.1; and 2. in addition to their salaries and the loading provided for in cl 40.1, shift allowances as follows (cl 50): 1. Afternoon Shift - commencing between 10 am- 1 pm - 10% 2. Afternoon Shift - commencing between 1pm- 4pm - 15% 3. Evening Shift - commencing between 4 pm- 4 am - 17.5% 4. Evening Shift - commencing between 4 am- 6 am - 10%
The Weekday and Weekend Allowances are relevant to this case in two respects. Firstly, the parties' experts disagreed as to whether Weekday and Weekend Allowances should be considered when deciding if Special Constables are "low-paid", a matter the PSA claimed as relevant to determining its historic or intrinsic undervaluation claim. This is a matter we have considered in greater detail below in the context of the PSA's Special Case claim at [184]-[234]. Secondly, the parties disagreed on whether the allowances are relevant when considering the issue of wage relativities and leapfrogging. It is necessary to give some greater context to this issue.
The PSA argued that the Weekday and Weekend Allowances should be excluded when comparing the salaries in other awards and determining if Special Constables are "low-paid". The PSA argued that if the Weekday and Weekend Allowances were considered in this analysis, it would deny Special Constables any remuneration to recognise the disadvantages they experience when they perform weekend shift work: PSAS at par 66. Further, it was submitted that the payment of the Weekend Allowance provides "flexibility" to the Police Commissioner, as she can shift the Special Constables into different sites, at short notice. Conversely, Special Constables know that such a requirement will not result in a reduction of their salary. Finally, it was put that the payment of the allowances standardises the salary for the purposes of calculating other conditions of employment such as annual leave, noting that overtime is calculated with reference to the base salary rate without allowances: PSAS at pars 70-71.
As part of its case before the Full Bench, the PSA provided an analysis which sought to compare the rates of pay received by Special Constables with those received by Police Officers. In doing so, it applied the base rates only of Special Constables, but calculated the rates received by Police Officers as including the loading in cl 40.1 of the Police Award.
There are similarities in the effect of cll 40 and 50 of the Police Award and cll 11, 18 and 19 of the Current Award. However, they are not directly comparable. Therefore, it is difficult to conduct a comparison of the remuneration received by Special Constables and Police Officers without considering the circumstances of each employee on an individual basis.
The practice of automatic payments of the Weekday and Weekend Shifts Allowances to full-time employees, means that these payments are not being paid as "shift allowances", as that term is used ordinarily in industrial instruments. Shift allowances are usually only payable as compensation when the relevant shifts are worked. The payment of the Weekend and Weekday Allowances regardless of when the full-time Special Constables work is more in the nature of a "loading" as provided for in cl 40.1 the Police Award. The amount of the Weekday and Weekend allowances are significantly greater than the loadings paid to Police Officers. However, Special Constables are not additionally compensated when they are required to work the relevant shifts, unlike Police Officers subject to the Police Award.
Despite the anomaly in the manner in which the Weekday and Weekend Allowances in the Current Award are paid, neither party proposed a change to cll 11, 18 or 19. However, the Police Commissioner submitted that those provisions could be "substantially simplified", with revised terms being included in the Proposed Award to reflect the current practice, which would also reduce the prospect of future disputations: PCS at par 275. We direct the parties to confer with respect to this issue.

[15]

Work Value Case

The PSA provided the following written submissions with respect to the work value claim (Application at pars 13-15): "Work Value 13. The work value of the work performed by Special Constables has not ever been assessed for many decades. 14. The nature of the work performed by Special Constables, and/or the skills and responsibility required, has changed. In particular: a. Since June 2018, Special Constables have been required to be trained in, acquire, wear, maintain an annual accreditation in, and use tasers; b. Since 2016, Special Constables have been trained in and are required to use the software programme Web Cops to record events, conduct criminal history checks, vet non-police employees seeking to access worksites, conduct vehicle history checks, and submits intelligence reports; c. Since 2008 until 2018, Special Constables have provided security to visiting dignitaries though the MIST unit; d. Since May 2016, Special Constables have had to undertake and pass annual Active Armed Offender training; e. Since 2015, Special Constables have participated in the Overwatch scheme whereby Special Constables are placed in high visibility areas at to patrol high risk security locations as a visual and physical deterrent for armed offenders; f. Since 2015, Special Constables have undertaken extra duties when placed in counter positions, including all customer service and reception duties; g. Since 2013, Special Constables have had to submit quarterly Accountability Key Responsibilities reports; h. Since 2016, Special Constables have undertaken the CMF, an accountability and audit function that accounts for specific site policy and audit requirements including accounting for that areas arms and appointments, operational safety, and uniform policy requirements; i. Since 2014, Special Constables have participated in regular and random drug and alcohol testing; and j. Since 2014, Special Constables have undertaken gunshot residue testing. 15. Further, or in the alternative, the conditions under which the work of Special Constables is performed has changed. In particular: a. The national security threat level has been set at probable since September 2014 but was reduced to "possible" in November 2022 and is likely to remain at that level for the foreseeable future; and b. The Active Armed Offender training is premised upon increased threat from armed offenders including terrorists." (Underlining emphasis in original)
At a global level, the Police Commissioner disputed the PSA's claim that there has been a significant change to the nature of the work, skill and responsibilities required of Special Constables over the past two decades. She submitted that while Special Constables may have learned new skills with the implementation of technological improvements, it does not follow that this warrants a salary increase, or if it does, it would be of a minimal quantum: see PCS at pars 21-43.
With respect to the PSA's reliance upon the national threat level, the Police Commissioner argued that should not be equated with working conditions. It was put that regardless of the threat level, the actual working environment of Special Constables does not change, and it is not a matter that warrants a global salary increase: PCS at pars 32-33.

[16]

What is the appropriate datum point?

It is necessary to determine the datum point for the purposes of the work value claim. The datum point is the time against which the current circumstances are compared for the purposes of evaluating whether the work value has changed. The WFPs provide for the appropriate datum point in work value cases at 8.2(f): "(f) The time from which work value changes in an award should be measured is the date of operation of the second structural efficiency adjustment allowable under the State Wage Case 1989 (1989) 30 IR 107 or the last work value inquiry or the date of a consent award where the parties have agreed pursuant to a consent award the wage increases reflect increases in work value, whichever is the later."
This definition is problematic in this matter, as none of the points in time to which it refers can be identified. Neither party submitted that the date of operation of the second structural efficiency adjustment was relevant in this matter. There has been no work value inquiry in respect of Special Constables. There is no evidence that in respect of any of the applicable awards made by consent there was an agreement that any wage increases reflected increases in work value.
The PSA nominated 18 April 2000 as a datum point. However, it submitted that: 1. when work has been historically undervalued, the datum point in the work value WFPs renders the work value principle an inapt vehicle to address the undervaluation, referring to Re Equal Remuneration Principle [2000] NSWIRComm 113 at [144]: PSAS at par 8(a). 2. although the work value WFPs may be "inapt" due to the absence of a previous work value assessment of the work of Special Constables, they apply. Given the historical absence of a work value assessment, however, the Commission would hesitate to allow the datum point requirement in the work value principles to limit a salary that the Commission otherwise thought was just and reasonable. The application of the Special Case principle may avoid this issue: PSAS at par 9(a).
The 18 April 2000 date coincides with the creation of the Field Supervisor position and the date from which this position's weekly pay rate was applicable (Crown Employees (Police Service of New South Wales, Special Constables (Security)) Award (publication number C0789)).
The history of regulation of the terms and conditions of employment of Special Constables was agreed by the parties as set out at pars 12-34 of the ASOF reproduced at [7] above. The Commission has not undertaken a work value assessment of Special Constables since at least 1957. From 1997, the Commission has made awards applying to Special Constables. The awards have been remade consistently since that time and always by consent and from 2014 to 2022, in the context of the Industrial Relations (Public Sector Employment) Regulation 2014 ("Regulation").
Initially, the Police Commissioner argued that WFP 8.2(f) is not squarely engaged and in assessing any actual changes to work value, the focus should be on a contemporaneous, objective assessment of the work value of Special Constables: PCS at par 29. However, the Police Commissioner's expert, Associate Professor O'Brien, accepted 18 April 2000 as a date that could possibly be used, despite it not aligning with cl 8.2(f) of the WFPs. In this regard, he noted that if a work value assessment is to include Field Supervisors, there was logic in the datum point commencing from the nominated date. He did however, state (O'Brien first report at par 22) (references removed): "My main comment regarding the appropriateness of 18 April 2000 is that it obviously encompasses over twenty years in duration, which is a relatively long time when considering any changes to the nature of work, skills or responsibility, or conditions under which the work is performed, for any occupation. There have been considerable changes that have occurred within workplaces in this time. Most notably, advances in the development and use of information and communication technologies (ICT), and the associated need for '21'st century skills' and competences consisting of ICT Skills (pedagogical and ethical) and higher order skills (critical thinking, creativity, problem solving, self-regulated learning, communication, and collaboration)"
We accept it is appropriate to consider the work value claim brought by the PSA by reference to its nominated datum point of 18 April 2000. While it does not align with WFP 8.2(f), we note that these are guidelines only and we can see no reason in principle why we should not accept the PSA's nominated datum date as appropriate. We consider that to do otherwise would disadvantage Special Constables who have not had their work valued by the Commission in recent history. We consider the nominated datum point to be acceptable given there has been no specific objection to it, or alternative offered by the Police Commissioner and the parties prepared their evidence and cases based on it. We have taken notice of Associate Professor O'Brien's evidence with respect to the rapid advancements in the workplace since 2000 in the context of considering the relevant matters relied upon by the PSA in the work value claim.

[18]

Overwatch

In 2015, a Special Constable shot dead an active armed offender ("AAO") who fatally wounded an NSW Police Force civilian employee, Curtis Cheng, outside of the Police Headquarters Building, Parramatta (now know as the Police Headquarters - Curtis Cheng Building, Parramatta) ("PHQ"). As a direct consequence of this incident, the "Overwatch" scheme was introduced at the SPC and PHQ.
The PSA relies upon the introduction of the "Overwatch" scheme to support its work value claim: see 14 of the Application. The ASOF provides the following with respect to the Overwatch scheme (ASOF at pars 114-118): "Overwatch Scheme 114. On 2 October 2015, a 15-year-old terrorist shot and killed Mr Curtis Cheng (an administrative employee of the NSWPF) at PHQ. 115. The terrorist was ultimately shot and killed by one of the two responding Special Constables. 116. A few months after Mr Cheng's homicide, Special Constables were formally tasked with performing static security and surveillance duties (Overwatch duties) outside the entrances to PHQ and SPC, at all times. 117. The purpose of Overwatch duties includes providing a visible security presence and deterrent to the public, and ensuring that any potential security risks to personnel and premises at which Overwatch duties are performed are minimised. 118. In about August 2018, a review of the security arrangements and Overwatch duties of Special Constables at PHQ and SPC was undertaken. The consequence of this was that Overwatch duties at SPC and PHQ were reduced to 6am to 9am and 3pm to 5pm Monday to Friday."
The Full Bench observed Overwatch duties being undertaken at SPC during the Site Inspections. The protective services performed by Special Constables during Overwatch were overt and highly visible. The Special Constables were standing directly out the front of the entry to the building, appeared vigilant and alert, proactively surveying their environment in the direct vicinity.
The issue of where Overwatch is performed was contentious in the proceedings. Superintendent McDonald gave evidence that Overwatch is only performed at the SPC and PHQ: par 61 of McDonald affidavit. He was not cross-examined with respect to this evidence. With respect to the term Overwatch, he gave oral evidence that, "I don't like that term and I'll probably change it, but it's a high visibility patrol": Tcpt, 10 August p 619 (16)-(17).
In respect of Parliament House, the PSA relied upon the evidence of Special Constables Pressley and Gilbert. Special Constable Pressley worked at Parliament House from around February 2017 to August 2021. Accordingly, at the time he gave his evidence he had not worked permanently at Parliament House for about two years. Since October 2021, Senior Constable Pressley has principally undertaken his duties at the Independent Commission Against Corruption ("ICAC"). Every second Sunday he conducts work at a "random post". Special Constable Pressley stated in his first statement at pars 28-33: "Overwatch refers to the practice of SCs performing stationary guard duties at fixed and highly visible positions at a post. The purpose of this is to act as a deterrent to members of the public intent to cause harm in the area. The difference between an overwatch patrol and an external building patrol… is that on an overwatch patrol I am standing in a fixed, stationary position for an extended period of time to act as a deterrent, while an external patrol I am actively patrolling an external area to ensure the security of the area. Overwatch is conducted at Sydney Police Centre, Police HQ and Parliament House. I have regularly conducted overwatch patrols at Parliament House over the course of my employment… … Overwatch is conducted from 8 am to 6 pm on weekdays at Parliament House with two SC's being rotated every hour."
Under cross-examination, Special Constable Pressley agreed that the duties he performs as a Special Constable at the various posts are governed by the relevant SOPs: Tcpt, 3 August 2023, p 231 (34). When taken to the Parliament House SOPs where there is no reference to Overwatch duties, he stated that he considered the "exit duties" to be Overwatch because that is how it had been explained to him in the past. He was unable to identify who provided him with that explanation. Other than in his statement, Special Constable Pressley did not reference Overwatch duties on the balcony at Parliament House: Tcpt, 3 August 2023, p 240 (21)-(50). At the time of the Site Inspection, the balcony at Parliament House was closed and covered due to construction works.
Without setting them out in full, the Parliament House SOPs provide for numerous duties under the heading "Exit Gate Macquarie Street: 2 Officers". These include observing the Parliamentary front perimeter, ensuring the area between the turnstile and exit gate is kept clear, "assist[ing] in gatehouse during large influx of visitors" and attending to emergencies as required: Parliament House SOPs (PSA 1, Tab 19, p 17). This can be contrasted with the description of Overwatch duties in the SPC and PHQ SOPs which clearly, specifically and distinctly provide that Special Constables are to "carry out overwatch duties on the forecourt area…. Special Constables will check side streets at random and maintain a visible presence on the forecourt area." SPC SOPs, (Ex PSA 2, Tab 22 p 24); PHQ SOPs, (Tab 23 p 29). When performing Overwatch, the SOPs expressly preclude Special Constables from eating or drinking, except for hydrating fluids, and require a rotation during their rostered shift at the direction of the Senior Officer. There is specific reference to "ALERT 2016 Concept of Operations" in the SPC and PHQ SOPS in respect of Overwatch, however, neither party referred to this in their submissions. The exit gate duties at Parliament House are not the same as the Overwatch duties.
Special Constable Gilbert has been employed as a Special Constable since November 2017. In December 2021, he commenced working on a rotational roster whereby he is posted at multiple locations: par 2 of Gilbert first statement. In reply to the Police Commissioner's evidence, he stated (Gilbert second statement at par 26): "…Overwatch duties (known as Exit on the Rotation) are performed at Parliament House on the balcony of the building from Monday to Friday normally between 8:00 am to 6:30 pm, unless it is a sitting day. During Parliamentary sitting times, SCs are normally required to perform Overwatch until the 'House has risen', which could be in the early hours of the morning for example 2:00 or 3:00 am if Parliament sits late, Additionally, Overwatch is also conducted on an 'ad hoc' basis during the day (in addition to the morning and afternoon Overwatch that occurs in Philip Street and Elizabeth Street) depending on the intel of proposed protests in the vicinity, visiting Dignitaries or VIPs' impending arrival."
Senior Special Constable Gilbert gave oral evidence that his reference to 'ad hoc' Overwatch above was in respect of the NSW Department of Premier and Cabinet ("DPC") site only: Tcpt, 2 August 2023, p 156 (19). He agreed that there was no reference to Overwatch duties in the SOPs for Parliament House and DPC and that when he states that Overwatch duties occur, it was his interpretation of what those duties are: Tcpt, 2 August 2023, p 169 (42).
Senior Special Constable Palmer gave evidence in re-examination that Overwatch and external patrols amount to the same thing. He stated in respect of the DPC operations (Tcpt 3 August 2023, p 206 (7)-(11)): "For the purposes of our patrols, and particularly Patrol New South Wales, at those particular timeslots in the day, we are statically placed on Philip Street for the express purpose of providing a safe environment and a visual deterrent for the safe arrival of cabinet ministers and members of the government staff to the building."
In support of its contention that Overwatch occurs at DPC, the PSA also relied upon the evidence of Special Constable Gilbert where he recorded an incident in his Notebook, "While standing on overwatch during a press conference with Minister CONSTANCE outside 52 Martin Place….": Ex COP2 at p 78. Special Constable Gilbert gave oral evidence that he used the word Overwatch in reference to his role at a press conference, stating (Tcpt, 3 August 2023, p 209 (8)-(15)): "So, overwatch is a visible deterrent and wearing a physical - physical obstruction observing - during a press conference with the minister. The ministers premier at DPC quite often do press conferences out on the footpath area, which involves a lot of media. And, obviously being out in the public, their safety and security comes first, and our role there is to be out there with them. Not directly with them, but out there so they can see us and so other people can see us, so they feel that they're safe, and we're that visible deterrent."
The only sites where the SOPs refer to Overwatch duties are SPC and PHQ. When the Overwatch duties at PHQ and SPC were reviewed by the SMU in August 2018, which included a comprehensive risk analysis supporting a reduction in Overwatch hours, there was no reference to Overwatch being undertaken elsewhere: Overwatch Deployment Assessment, Security Management Unit, August 2018, Ex PSA2 at Tab 24. However, the PSA maintained that in addition to being performed at SPC and PHQ, Overwatch duties are undertaken at the Parliament House and DPC sites.
We are not persuaded by the evidence that Overwatch occurs at either Parliament House or the DPC sites. Overwatch is a very specific operation that was deliberately established at the SPC and PHQ as a direct consequence of the murder of Curtis Cheng. The evidence of Senior Special Constable Gilbert and Special Constable Pressley was based on their understanding of what "overwatch" duties entail. This does not equate to Overwatch occurring at those sites. We agree with the Police Commissioner that the most objective evidence with respect to the work undertaken by Special Constables at each location are the SOPs. Putting aside the notes of Senior Special Constable Gilbert, there was no documentary evidence that Overwatch is being conducted on the balcony at Parliament House or DPC.
Overwatch duties involve providing a highly visible and vigilant presence, with an intent to create a deterrent impact. Given the requirement to remain singularly focused on this task, there are clearly elements of endurance, self-discipline and concentration involved. The positioning of Special Constables during Overwatch places them in a position to be the first responders to any threats as they arise. Other tasks performed by Special Constables, including external patrols for example, have overlapping elements and purposes. It is therefore not surprising that Special Constables likened some tasks they perform to Overwatch duties or refer to them as such, when these tasks are not in fact Overwatch duties. Overwatch is different to a patrol, which was also referred to by the witnesses as a "white level inspection". Although a patrol is similar to Overwatch in that it involves security and surveillance duties that are visible, deliberate, and proactive, it is not performed in connection with a particular confined area. Overwatch is singularly focused and Special Constables are not expected to conduct other duties simultaneously.
Several of the PSA's witnesses gave evidence with respect to the increased risk and exposure to them personally when undertaking Overwatch duties. Superintendent McDonald succinctly summarised some of the PSA's evidence in his affidavit (McDonald affidavit at par 62): "At paragraph 32 of Special Constable Pressley's statement, he says that there is an inherent risk to Overwatch given the purpose is to act as a deterrent against attacks occurring within the area of a site. At paragraph 34 of Senior Special Constable Walker's statement, he states that Overwatch makes the work more dangerous, due to being stationed outside as a physical and visual deterrent. At paragraph 121 of Special Constable Saraceno's affidavit he says that there is a much greater risk to personal safety now that Special Constables have to perform Overwatch duties and more probability that they will have to respond to an active armed offender situation. At paragraph 122 of Special Constable Saraceno's affidavit he says that following the introduction of the Overwatch scheme the work of Special Constables has 'fundamentally changed in that we provide a proactive rather than reactive policing role'. At paragraph 140 of his statement, Special Constable Carnevale says that since the introduction of the overwatch and external roving patrols, Special Constables lives and personal safety are at risk every day. He also refers to the current terrorist threat level being 'probable' (as at the date of this affidavit, it has been downgraded to 'possible')."
Dr Lyons conflates Overwatch and Patrols in his first report: Lyons first report at par 76. Dr Lyons' first report states (at par 77): "Witness statements I examined comment on how participation in the Overwatch scheme has changed the nature of their work. These changes include greater interaction with the public, often in a 'first responder' situation, and a heightened awareness of threats and risks… In my view, these materials suggest the Overwatch scheme is an example of proactive frontline policing. Consequently, it is indicative of an increase in work value as it involves new responsibilities and changes to the environment of the work of Special Constables."
While Dr Lyons does not give a direct opinion that Overwatch significantly increases work value, his conclusions with respect to this work have clearly informed his opinion that the work changes experienced since 2014 cumulatively give rise to a significant change in work value: Lyons first report at par 98.
Dr Lyons acknowledges in his second report the differences between Overwatch and mobile patrolling. He notes that Overwatch was undertaken by Police Officers for some months prior to it being referred to Special Constables, concluding that it is therefore, "police work". He also notes that mobile patrols have been described as "proactive". He cumulates these conclusions, stating: "[t]herefore, Overwatch duties have been police work and mobile patrols are proactive". He reaffirms his opinion that both mobile patrols and Overwatch are new responsibilities and changes to the environment of work: Lyons second report at pars 174-176.
Police Officers undertook the Overwatch duties immediately after the murder of Curtis Chang "as a risk management strategy and to ease the fear of staff": Memo recommending reduction in Overwatch, Ex PSA 2, Tab 24, p 1. The SMU overtook this work a few months after this. There are aspects of police work that are the same or like the work of Special Constables. However, Dr Lyons' attempt to compare the work of Special Constables to that of Police Officers was not helpful in evaluating whether there has been a significant increase in the value of the work performed by Special Constables.
Associate Professor O'Brien's evidence acknowledges the conflicting evidence with respect to the locations where Overwatch is performed. He did not seek to resolve this, but instead noted that the work performed is restricted to a relatively small number of locations and on limited days and hours. He concluded that Overwatch would only potentially engage WFP 8.2(c) and (e) and a special allowance rather than a wider wage claim. At par 93 of his first report, he states: "…The provision of static security and surveillance duties is consistent with Special Constables' overall duty to protect personnel and property at the locations to which they are posted. However, it is apparent that outside patrols, while previously conducted at locations such as Parliament House, were relatively rare in occurrence. Therefore, my opinion is that Overwatch does represent a small change in the nature of work to otherwise the conditions under which work is performed. However, I don't think it is a change to skills and responsibilities. While the undertaking of work external to the building does come with some potential risks association with greater exposure to disgruntled or hostile public members, incidents described by Special Constables in witness statements appear to be relatively infrequent and minor. Furthermore, the provision of extra security features installed at SPC and PHQ is recent years, provision of AAO training and associated preparation for adverse events, as well as the reduction in time allocated to Overwatch duties, indicates a diminished net addition to work requirements."
Superintendent McDonald gave the following evidence for the Police Commissioner in respect of Overwatch duties (pars 63-72 of McDonald affidavit): 1. The visible presence of uniformed officers, such as Special Constables, generally contributes to a safer environment by acting as a tactical option that de-escalate situations. 2. Special Constables are equipped with the necessary training, arms, and appointments to handle various situations and therefore are better protected than administrative employees entering or exiting the relevant posts for their duties. 3. Overwatch is not proactive frontline policing, but a core role of Special Constables to provide protective security services. The performance of this work is not indicative of new responsibilities but rather an aspect of the established duties of Special Constables. 4. There is no objective evidence, for example, on WebCOPS of a higher risk to negative encounters with drug affected members the public or those suffering from mental health issues and in any event, such interactions are a part of the role.
We accept the evidence of Superintendent McDonald, with the exception of his assertion that Overwatch is not indicative of new responsibilities. Overwatch commenced in 2014 after the murder of Curtis Cheng and it is different to the other duties performed by Special Constables. We acknowledge that the role of Special Constable necessarily entails a level of risk of exposure to violence from members of the public and there is an expectation that they may be required to place themselves in harm's way. Although the objective of Overwatch is to create a deterrence impact, the evidence to support the contention that the performance of Overwatch has materially decreased rates of crime was non-specific and/or anecdotal: see for example, Exhibit TS-1 to the Saraceno affidavit at p 46, email from Inspector Blake Reily of 2017. There were few examples in the evidence of Overwatch resulting in the active discharge of arrest.
Overwatch is generally consistent with the core duties and responsibilities expected of Special Constables. Special Constables have always provided security and surveillance and been expected to respond to threats at their posts. The difference between Overwatch and some other duties performed by Special Constables is subtle. It does not require significantly different skills and responsibilities when compared to other duties. The role and responsibility of Special Constables has been described at NSWPF sites as providing, "a frontline policing and security role; ensuring a safe and secure work environment for personnel, property and information": see for example, SOP Parliament House Sydney Ex PSA2 at Tab 19 p 3; SOP Police Executive Offices Ex PSA2 at Tab 20 p 4. Some of the SOPs do not refer to services being frontline or policing duties, but still refer to the duty of providing protective security services ensuring safety and security of personnel, property, and information: for example, those relating to user pay sites, of the ODPP and Government House. In the context of the NSWPF Dog Unit and Mounted Unit, Special Constables provide "a high-level of protective security service to the location and NSWPF assets - NSWPF [Dog Unit canines/NSFP Horses]; ensuring a safe and secure work environment for personnel": Ex PSA2 Tab 13 SOP NSPF Dog Unit at p 4, Tab 17 SOP Mounted Unit p 4.
Although the work conducted during Overwatch is consistent with the broader objectives and responsibilities of Special Constables, we accept Special Constables feel more exposed when conducting this work. When on Overwatch, Special Constables clearly present themselves as "the first line of attack" to any would-be offender. This is a significant responsibility, even if the skills involved are not overly different to those used in other areas of their work.
We accept the view of Associate Professor O'Brien that the conduct of Overwatch does not support a generalised increase in remuneration because it is not performed at all sites: WFP 8.2 (c) and (e). Furthermore, there was no evidence of Overwatch being performed at all classifications. If an applicant seeks wage increases for all classifications under an award, then the applicant carries the onus of demonstrating work value change in respect of each classification: see Re Public Hospitals Nurses (State) Award (No 4) (2003) 131 IR 17 at [22].
Special Constables should be compensated by way of an allowance for each shift they are required to perform Overwatch duties for the reasons set out above at [70]-[71] and [80]. As we have articulated above (see in particular [63] and [69]), Overwatch duties currently only occur at PHQ and SPC, at the direction of the Police Commissioner, and is as described in the SOPs for those sites. The new award should define Overwatch duties consistent with this to avoid any future disputation. The Full Bench was not addressed on the appropriate quantum of any such allowance. Accordingly, we direct the parties to confer with respect of this issue. The Commission is available to assist if consensus is not able to be reached between the parties with respect to the allowance.

[19]

AAO training

Special Constables have always faced the possibility of having to confront or take action in respect of an armed individual. However, following a change in the approach of the NSW Police Force to dealing with armed offenders, since late 2015 to early 2016, Special Constables have been required to undertake AAO training. The parties agreed upon the following matters with respect to the AAO training undertaken by Special Constables (ASOF at pars 98-103): 1. The training involves a proactive approach to responding to terrorist and other high-risk incidents by locating the offender, restricting the offender's access to further victims, and implementing an appropriate resolution option. 2. The AAO training provided to Special Constables and Police Officers during their recruitment training is substantially the same. 3. The training course is two to three days in length and involves both theory and practical sessions. 4. To pass the AAO training, Special Constables are required to successfully complete scenario-based tasks which simulate an AAO situation.
Detective Superintendent McDonald gave evidence in respect of the introduction of the AAO training to the NSW Police Force in 2014 (McDonald affidavit at pars 117-123). In 2014, the NSW Police Force recognised that its "contain and negotiate" strategy was not suitable for incidents involving AAOs. In response, the NSW Police Force collaborated with Charles Sturt University ("CSU") Psychology researchers to conduct an international literature review. The goal was to identify best practices for responding to AAO incidents globally and provide evidence-based recommendations for police responses. CSU's recommendations included the need for a clear active shooter policy and appropriate training.
The AAO program, implemented in November 2015, aimed to equip NSW Police Force officers with additional skills and resources for responding to terrorism or high-risk incidents. The training covers (ASOF at par 101): a. team movement, b. door entries, c. threat assessment, d. engagement and post-engagement, e. first aid, f. rapid evacuation of casualties and g. command control.
Detective Superintendent McDonald gave evidence that the program's basic principles have remained consistent, with occasional adjustments in response to known threats or incidents in other jurisdictions.
Superintendent McDonald gave his opinion that based on his experience, Police Officers are more likely to encounter AAO situations due to the highly secure nature of the locations where Special Constables are deployed, making them less-desirable targets. He also stated that annual AAO re-accreditation for officers has been discontinued since around 2020, though new recruits still receive AAO training. Refresher training now occurs online and takes about 30 minutes to an hour to complete: Tcpt, 1 August 2023, p 84 (24)-(25); 2 August 2023, p 160 (39).
Senior Special Constable Atkinson disagreed with Superintendent McDonald's opinion with respect to the likelihood of an AAO encounter, and gave evidence that a terrorist attack is more likely to occur at a government or police building: Atkinson second statement at par 26.
It is clear from the evidence that the risk profile encountered by Special Constables are dynamic: see below at [108]-[109]. The risk or likelihood of an encounter requiring the AAO training to be put into practice are not able to be predicted with any great accuracy. The fact that Police Officers may be called to an AAO incident rather than encountering them spontaneously at their post, as might occur for a Special Constable, does not in our view, take this issue any further: see PCS at pars 155-156.
We also observe that the work value is not only in the AAO training that is provided, but the expectation of the actions that are to be taken by an officer in the line of duty should such a situation arise. This is a significant expectation. The evidence of Special Constable Flockhart illustrates this point (Flockhart first statement at par 44): "After the introduction of AAO training, we are expected to be the first responders and be able to contain and disarm any active armed offenders who are threatening the lives of the public and NSWPF employees This is now a daily thing that we must prepare to face."
The Full Bench decided that the AAO training and reforms attracted the work value sub-principle in the 2021 Police and Paramedics Salaries Case. In that matter, after considering the parties' evidence and submissions in respect of the AAO training, the Full Bench concluded (at [109]): "We agree with the PANSW that the Crown's submissions understate the significance of the Active Armed Offender reforms. We also do not consider that they properly reflect the environment in which, and in response to which, they were introduced."
The PSA argued that the AAO training is an example of the significant increase in work value offered by Special Constables. Additionally, the PSA argued that the AAO training has changed the conditions under which Special Constables work. The parties agreed that the acquisition of the skills acquired through the AAO training represents an increase in the work value of Special Constables. The parties do not agree upon the extent of this increase. The PSA claimed that the uplift in skill for Special Constables is greater than for Police Officers. The Police Commissioner submitted that to the extent that the Full Bench concludes that the AAO training and the introduction of tasers are matters in respect of which the work value of Special Constables is increased, at most, it would be in a manner that is commensurate with what the Full Bench concluded in respect of Police Officers in the 2021 Police and Paramedics Salaries Case: Tcpt, 15 November 2023, p 49 (18)-(24). In that matter, the Full Bench awarded an increase of 1.75% in salaries and salary-related allowances to Police Officers for reasons which included the change in training and approach in respect of AAOs: see [299]-[301].
We have considered the Police's Commissioner's submissions to the effect that the Full Bench's findings in respect of the AAO training were made in the context of an increase to the national security threat level. We note that Associate Professor O'Brien expresses his opinion that the AAO training attracts the work value principle in the same manner as Police Officers. However, he also found that the downgrading of the national security threat level from "probable" to "possible" may have an effect on work value in the future (Associate Professor O'Brien first report at pars 77; 143; 187). We do not accept that it has or will do so. We also reject as irrelevant the arguments that the work value increase is less for Special Constables because they are less likely to encounter an AAO for the reasons we have set out above: see [94]-[103] of 2021 Police and Paramedics Salaries Case and [89] above. We are persuaded that the training and change in approach is of equal work value for Special Constables as it is for Police Officers. Support for our conclusion can be found in the evidence of Dr Lyons who gave his opinion that the AAO training attracts the work value principle in the same manner as Police Officers: Lyons first report at pars 70-73; Lyons second report at par 17.
We are not persuaded by the PSA's argument that the increase in the work value is greater for Special Constables than it is for Police Officers because it is being added to skill levels that are lower than those of Police Officers who benefitted from the 2021 Police and Paramedics Salaries Case: par 44 of PSAS. As was submitted by the PSA and is evidenced by the conduct of the Special Constables involved in fatally wounding the individual who killed Curtis Cheng, it has always been the role of Special Constables to protect against such acts of terrorism. However, the way this is to occur has become more sophisticated and requires more skills than it did previously. The remuneration of Special Constables should be increased to reflect this.

[20]

Tasers

Since 2018, Special Constables have been issued with tasers. The parties largely agreed upon the key facts in respect of the use of tasers by Special Constables: ASOF at pars 80; 107-109; 137-139. These can be summarised as follows: 1. Special Constables are required to complete 8 hours of initial training in respect of tasers. 2. There is a requirement to undertake annual accreditation training in the use of tasers, which involves passing a scenario-based test. 3. The appointment of a taser has been in addition to the existing appointments of baton, firearm, handcuffs, and OC spray. 4. Senior Special Constables have extra duties in respect of tasers including (ASOF at pars 138-140): 1. on a weekly basis, reporting on tasers and spark tests; 2. on a monthly basis, extended spark tests and downloading of spark test footage, and inspecting the taser register; and 3. on a quarterly basis, conducting an audit of tasers. 1. No taser has been discharged by a Special Constable while on duty.
The parties do not agree on the extent to which the introduction of tasers has resulted in an increase in work value.
In his evidence, Senior Special Constable Carnevale stated (Carnevale first statement at par 135): "The deployment of tasers means that SC's have to exercise a higher level of judgement and critical thinking in considering 'the judicious and appropriate use of tasers operationally.' Special Constables now have another tactical option (other than a firearm or baton or OC spray) and a taser is a use of force I need quick thinking and may have to make a split-second decision to use a taser and be able to justify my actions."
Similarly, Field Supervisor Saraceno stated with respect to the introduction of tasers (Saraceno affidavit at par 149): "The allocation of Tasers has result in SCs having to utilise different and highly developed skills including judgement, vigilance, quick thinking. A SC now needs to assess whether they should use a Taser, baton, OC spray and a firearm as a [last] resort in any given situation. If a taser is discharged a SC will need to attend the Taser review board. A SC must ensure any use of a taser is justified. A taser has a 5 second burst and is only to be used in specific circumstances and with justification… As referred to in this affidavit SC must adhere to strict protocols and procedures regarding Tasers."
In Crown Employees (Police Officers - 2009) Award [2012] NSWIRComm 23 ("2012 Police Salaries case") the Full Bench stated in respect of the introduction of tasers to Police Officers at [447]: "The 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)."
Dr Lyons concluded with respect to tasers and their contribution to work value (Lyons first report at par 56): "In my opinion, the introduction of Tasers to the Special Constable role has added to both their skill level (training and accreditation requirements) and application of decision making (when to deploy a Taser). Therefore, it has added to their work value."
Dr Lyons' consideration of the increased work value attributable to tasers in arriving at this conclusion is brief. Although he refers to the documentation and evidence relied upon to form his view, there is a limited analysis in his report to support his conclusion.
The main point of distinction between the opinion of Associate Professor O'Brien and Dr Lyons in respect of the increase in work value attributable to lasers is the relevance of the frequency of their use by Special Constables when compared to Police Officers. Associate Professor O'Brien stated that the small addition to work value found in respect of the provision for Police Officers should "in theory" be transferred to Special Constables. He then went on to qualify this statement as follows (O'Brien's first report at par 37): "…..However, my opinion is that the small addition of work value that was applicable for Police Officers would be diminished for Special Constables by the reduced likelihood or frequency of their use, as supported by the evidence that a taser has never been drawn or intentionally discharged by a Special Constable in the four plus years they have been in service, compared to over three thousand documented taser uses for Police Officers over a similar duration in time. "
Dr Lyons disagrees with the above view expressed by Associate Professor O'Brien. He opined that prioritising the frequency of use of Special Constables' appointment and weapons is simplistic. He noted the reported discrepancy in their use within the Police Force and stated (Lyons second report at par 20): "… In my view, that Special Constables have not intentionally drawn or discharged a Taser is an indication of consistent sound judgement and a reliance on communication and negotiation skills."
The roll-out of tasers to Special Constables involved the acquisition of new skills and responsibilities. This is evidenced by the training Special Constables are required to undertake to be issued with their tasers. The provision of tasers involves additional decision-making, even though the evidence discloses that there has not been occasion for a Special Constable to use a taser in the course of their duties (although this may be the result of such decision-making). Special Constables have always been trained for and required to consider the appropriate deployment of weapons in the course of their duties. However, we are not convinced that the introduction of tasers only represents an evolution in the technologies available to Special Constables when performing their duties: McDonald affidavit at par 94.
We accept the PSA's submissions that the increase in work value is greater for Special Constables than for Police Officers because it is a less common aspect of their work: PSAS at par 41. However, the increase in work value that can be attributed to the introduction of tasers is still modest. We also observe that a percentage increase for the acquisition of this new skill to Police Officers (as occurred in the 2012 Police Salaries case), results in an increase that is greater in whole dollars terms than for Special Constables given their comparatively lower base salary.
With respect to Senior Special Constables, while the evidence demonstrates that they have acquired new responsibilities and are required to perform additional tasks, we are not satisfied that this has increased work value: see [95(4)] above. The tasks required to be performed, including spark tests and downloading taser footage from the instruments, are not complicated and can be completed in a short amount of time. For example, Senior Special Constable Carnevale gave the following evidence under cross-examination (Tcpt, 1 August 2023, at p 62 (1)-(20)): "Q. I want to suggest that spark testing the tasers is not something that takes terribly long to do? A. Depending if it's a single spark test or if it's a multiple spark test, but not terribly long to do. Q. How long does a single spark test take roughly? A. Take five seconds. Q. And then downloading taser footage is another task that you said has to be undertaken monthly? A. Yes. Q. That involves effectively plugging a particular cable into the tasers to download the footage? A. Correct. Q. And then it becomes an automated process that takes roughly, say, 30 minutes? A. Depending on if the computer is doing the right thing by you or if it's not. It could take a little bit longer."
We accept the submissions of the Police Commissioner that the additional duties attributed to Senior Special Constables associated with tasers do not increase work value. We consider separately the claim of increase in work value because of the introduction of the Command Management Framework ("CMF") Audits.

[22]

Extra duties on counter

The PSA claimed as a reason for the work value increase, the change in counter duties: Application at par 14(f). The ASOF provided: "Counter duties 121. Special Constables are required to undertake reception or front counter duties at all sites excluding DPC, the Mounted Unit, Dog Squad and Government House. 122. While performing these duties, Special Constables are the first point of contact for visitors, including contractors, staff and members of the public attending the particular site. 123. The duties which are performed may include, but are not limited to: a. Operating an x-ray machine; b. Operating the metal detector or metal detecting wand; c. Issuing visitor badges; d. Ensuring that visitors sign a visitor book and contacting the person that is being visited to alert them to the visitor's presence; e. Searching WebCops [sic] to check whether the person entering the site has been vetted by NSWPF and has been given approval to enter a site or is known to the NSWPF (that is, they are a person the subject of adverse intelligence holdings)."
Several PSA witnesses gave evidence of the requirement to detain and arrest a person when exercising counter duties. For example, Special Constable McDonnell gave evidence of people presenting at the SPC to surrender themselves where they have warrants for their arrest, given the proximity to the Surry Hills Police Station. In such circumstances, the Special Constable handcuffs the individual and escorts them to the Police Station: par 29 of McDonnell first statement.
The evidence demonstrates that the capabilities exhibited when undertaking counter duties are variable and include a mix of communication, administrative, security, and on occasion, law enforcement skills.
Long-serving Special Constables, Field Supervisor Saraceno and Senior Special Constable Carnevale gave evidence of having engaged in reception and counter duties when they first commenced in their roles, prior to the datum point: Saraceno affidavit at par 36; Carnevale first statement at par 23. The question raised by the Application was whether there have been additional duties added to this aspect of Special Constables' roles, attracting the work value principles. There was limited evidence adduced by the PSA with respect to different counter duties undertaken by Special Constables since the datum point. Though not identified by the PSA in its submissions to support this aspect of its claim, we note the following evidence: 1. The removal of a receptionist at PHQ in 2010 leaving only a Special Constable to field enquiries at the location for members of the public: Walker statement at par 54; and 2. At the SPC, there is "now" a requirement to field enquiries from civilians who may wish to report a crime or inmates being released or their family members waiting for them to be released from custody. Special Constable Flockhart gave evidence that former inmates and their families can become agitated and verbally abusive towards Special Constables performing those duties: Flockhart first statement at pars 52-53.
The PSA did not make submissions as to the importance or effect of this evidence in either its written or oral submissions. We are unable to conclude from Field Supervisor Saraceno's and Senior Special Constable Carnevale's evidence that there has been a change in the counter duties being performed by Special Constables. The removal of the receptionist at PHQ in 2010 might have resulted in an increase in the volume of work but not the value of the work. We are unable to conclude that there is in increase in work value because some of the interactions with civilians are difficult. We do not have evidence that this was not previously the case prior to the datum point. Moreover, these duties are not conducted at all sites and therefore could not found an increase in the remuneration for all Special Constables: WFP 8.2(e).
Special Constable Flockhart's evidence contains no detail or particulars of how or when the counter duties he refers to have changed. Under cross-examination, he agreed that the counter-duties performed are consistent with those set out in the SPC SOPs and that he had been required to record one event in WebCOPS, and this was in respect of an incident at PHQ: Tcpt, 4 August 2023, p 287 (40); p 293 (45)-(49); PSA1 pp 798-799.
Dr Lyons summarised the evidence with respect to the counter duties performed by Special Constables, however, he does not provide an opinion with respect to whether there have been changes in the duties, and if so, if such changes attract the work value principles: Dr Lyons first report at pars 78-79.
Associate Professor O'Brien concluded that the duties performed on the front counter fall within the scope of customer service responsibilities that Special Constables have always held, and do not constitute a significant net addition to work requirements, nor does the role require additional skills or responsibilities: O'Brien first report at pars 94-104.
The PSA has not established its case that there have been additional or more challenging or complicated duties associated with work at the front counter that would attract the work value principles for the reasons we have provided above at [114]. We have found no support for the PSA's claim to the contrary in either the lay or expert evidence.

[23]

Drug & Alcohol and gunshot residue testing

Since December 2014, the statutory provisions in the Police Act 1990 (NSW) ("Police Act") relating to drug and alcohol testing, and gunshot residue testing have applied to Special Constables: ASOF at par 11. Relevantly, those provisions provide that (by operation of s 81G(4) of the Police Act): 1. A Special Constable is required to submit to random or targeted drug and alcohol testing and testing for steroids on a targeted basis: ss 211A-211AA. 2. A Special Constable may be instructed to undergo testing for gunshot residue if the officer is suspected of having discharged a firearm or was present when another officer discharged a firearm. If so directed, the Special Constable must comply with the testing process as specified in the directive: s 211AB. (collectively, "the testing regime")
Senior Special Constable Walker gave evidence suggesting Special Constables' drug and alcohol testing could occur prior to 2014, but not randomly (Walker statement at par 50): "Since 2014, Special Constables have been required to participate in random drug and alcohol testing - the same as sworn police officers. This occurred after SCs were transitioned to the Police Act and employed as administrative employees. When we were employed as ministerial employees, we were not required to be (sic) participate in random drug and alcohol testing, we would only be tested if it was related to a certain incident."
The PSA's submissions with respect to the testing regime principally focussed upon the random drug and alcohol testing requirements. The PSA argued that the requirement to submit to random drug and alcohol testing demonstrates that the Special Constables are now subject to higher levels of accountability. It was put that the drug and alcohol testing requirements mean that Special Constables must now meet an objective test to demonstrate that they are in a condition to discharge their duties appropriately. The PSA argued that in the absence of random testing, an employee is generally only accountable to themselves to ensure that this is the case. Further, the PSA argued that accountability to an employer generally only arises if an employee is actually drug or alcohol affected (whether patently, or demonstrated in an inability to perform work appropriately), or an incident occurs which requires mandatory drug or alcohol testing. The PSA sought to contrast this with random testing, where "there is no margin for error - an employee must be attending work on the basis that a random test could occur at any time. There is necessarily a higher accountability involved": pars 48-49 of PSAS.
Dr Lyons did not opine that the testing regime requirements were a significant net addition to work value. He found that the implications of the testing regime are that the conduct of Special Constables is expected to be the same standard as Police Officers. He concluded that this has altered the conditions under which the Special Constables work: Dr Lyons first report at pars 82-84. We agree the conditions of work of Special Constables have changed as a consequence of the testing regime. However, in our view, the PSA's submission that the testing regime supports its claim that there has been a significant increase in work value and in turn, its argument for an increase in wages is unmeritorious. We have arrived at this conclusion for the following reasons: 1. The requirement to be tested to confirm the absence of drugs and alcohol and to submit to gunshot residue testing do not change the nature of work the Special Constables perform, nor their skills or responsibilities. 2. Special Constables have always been accountable to their employer and indeed the general public to turn up to work fit for work and sober. This duty is fundamental given the nature of their work and the fact that Special Constables have carried weapons in the course of performing public duties since well before the datum point. 3. The testing regime is not onerous in terms of the time and commitment needed from the Special Constables to comply. It does not require any additional skills or training. 4. The requirement to submit to gunshot residue testing has only occurred once, in the context of the fatality associated with Curtis Cheng's murder.
The requirements do not attract the work value sub-principles in cl 8.2 of the WFPs.

[24]

WebCOPS

Since in or around 2016, Special Constables have used the WebCOPS system in their day-to-day duties, including while performing counter and traffic box duties.
WebCOPS is a program used to access the Computerised Operational Policing System ("COPS") database. COPS is the NSW Police Force's core operating system that is used to record all operational information gathered from the field. This allows for those with access to the system to analyse crime information and intelligence on an organisation-wide basis.
Special Constables use WebCOPS for two distinct purposes: to record relevant incidents; and check the COPS database for information to assist in deciding whether to permit entry of certain persons and vehicles on to some sites, where such persons have not already been vetted. The following facts were agreed with respect to the introduction and use of WebCOPS by Special Constables (see for example ASOF at pars 92-97): 1. Special Constables are required to record events or incidents in WebCOPS for example, in respect of: 1. fire alarms, 2. suspicious persons or vehicles, 3. persons spoken to for a security related reason; and 4. the use of conferred police powers, for example an arrest. 1. Prior to the introduction to WebCOPS, Special Constables were required to record relevant events or incidents, amongst other things, on a notepad computer program called the "Occurrence Pad". 2. Where a Police Officer attends an incident, it is commonly the case that the Police Officer will record the incident, not the Special Constable. 3. Visitors such as tradespeople and contractors are usually security vetted by the Security Vetting Unit ("SVU") and the outcome is reflected in WebCOPS as an "admin-event". 4. Special Constables at some sites can be required to use WebCOPS to conduct criminal and vehicle history checks in relation to contractors or visitors entering a site who have not been vetted previously. 5. Some but not all Special Constables received training on WebCOPS when it was introduced: par 124 of Carnevale first statement.
The parties did not agree on whether the introduction of WebCOPS increased the work value of Special Constables.
The PSA submitted (at pars 36-37 of PSAS): "As special constables had not previously used the computerised COPS system, the introduction of WebCOPS reflects a significant change in the way in which work is performed. The training module is identical to the training that police receive for the parts of WebCOPS that both special constables and police officers use such as creating an Event for specified purposes, creating an Intelligence Report, and using the search functions. When special constables use WebCOPS, it is in the same way, to the same standard, and involves the same level of complexity as for police officers when they are performing the same functions. The differences between WebCOPS and a Daily Activity Log are stark, and represent a significant increase in the skill levels required to perform search and record-keeping duties. In addition, some special constables are now issued with MobiPols for the purpose of using WebCops [sic] out in the field, which was not previously the case, for example, in 2007- 2010."
Dr Lyons opined that the use of WebCOPS has changed the way Special Constables work, added to the number and type of tasks they perform, and increased the skill and judgement required: Lyons first report at par 66. At par 46 of his third report, Dr Lyons stated: "Paragraph 47 of [Associate Professor O'Brien's]… expert report says Special Constables do not generally exercise autonomy when making decision after having accessed information on WebCOPS because they defer to Police Officers. Tab 9 of the WSM shows instances where this did not happen, and it was the Special Constables who exercised autonomy in making the decision to deny persons access to the site (WSM Tab-9, pages 340-341). Tab 10 of the WSM also shows examples of Special Constables exercising autonomy after checking WebCOPS, one event involved making an arrest and the other involved denying a person access to the site (WSM Tab-10, pages 382-383)."
The Full Bench considered the introduction of WebCOPS in the context of police work in the 2012 Police Salaries Case. The Full Bench reasoned in that matter (at [445]): "…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 adaption 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."
With respect to the recording of incidents, the above reasoning applies equally to the PSA's claim that WebCOPS has increased the work value of Special Constables. Special Constables were required to record particular events, or incidents prior to the datum point, albeit on a different computer program, and or in their notebooks or duty books as deposed by Superintendent Paul Smith: par 26 of Smith affidavit; Tcpt, 8 August 2023, pp 468-487. The fundamental requirement has not changed. We reject the PSA's submission that the differences in the task are stark: PSAS at par 36. Although Special Constables have variable computer capabilities, the evidence was that most Special Constables were able to use WebCOPS effectively and without difficulty or the need for extensive training.
The PSA's comparison of Special Constables' use of WebCOPS to that of Police Officers does not advance its case. We accept that general duties Police Officers use WebCOPS far more frequently and for different purposes than Special Constables.
The provision of access to WebCOPS to Special Constables is not an increase in work value. It is an example of an adaption to new and improved technology and processes.
The use of WebCOPS for the purposes of deciding whether to allow access to sites by certain people is slightly more complex. The PSA argued that this evidences that Special Constables are now required to exercise greater levels of judgement when deciding whether to allow individuals access to sites. Field Supervisor Saraceno gave evidence that he had previously vetted various contractor on COPS and created a spreadsheet of person authorised to access NSW Police Force and NSW Government buildings before this function was transferred to the SVU in about 2005: Saraceno affidavit at pars 68-72. He gave the following evidence under cross-examination (Tcpt, 2 August 2023, p 126, (21)-(48)): "Q. And in terms of an admin event, well, perhaps you could just explain to the Commission what an admin event is? A. Okay. What occurred early in 2000 is that I completed an Excel spreadsheet in regards to those approved contractors and it had the contractor's name, driver's licence, the work they were doing to ensure that they - that the staff would be aware that they had been cleared. Anyone that was declined was simply recorded as declined, their criminal records would not be divulged to anyone. What occurred with the SVU Unit is they went all electronic, the Excel spreadsheet ceased and then they got onto record it on the COPS system which then required all Special Constables to have access to the COPS system, so, therefore, they can do a central names index search on the person and one of the - one of the little boxes that will come up will be like an 'admin event' that you can click on and it will open up and say 'yes, this person has been vetted'. Now, if there's no little box on there that says 'admin event', it means that the person hasn't been cleared and Special Constables then have to make a determination by going through either their criminal record or any events that they - that they are known in regards to the police. At which time that they will either relate to the Field Supervisor or maybe the Coordinator or the Commander if they're about, but a majority of the times, most people have completed the - the admin event and majority of people go through. But there have been occasions where emergency contractors have come through, they haven't had the time to go through the process of completing the security vetting package and they've fronted up - we've done a search on the person - I had one person turn up and he had an outstanding bench warrant. So, yeah."
Field Supervisor Saranceno gave evidence that Senior Special Constables and Senior Constables were given access to COPS in or around 2005 and prior to this they would radio police to do a police check: Saraceno affidavit at par 139; see also Palmer first statement at par 71.
Dr Lyons gave his opinion that the vetting task has given Special Constables additional responsibilities, discretion, and decision making: He referred to the SOP for Police Premises where it states (par 65 of Lyons first report): "There is no objective formula as such that will govern what you determine to be ADVERSE history when determining whether or not a person or a vehicle should be granted access. [….] This is only a guide for Special Constables. These are factors that need to be considered. Proper assessment requires specialist training to be able to interpret the risk posed."
The SOP requirements in respect of allowing visitor access to sites is not uniform across the sites. Special Constables are not required to exercise discretion regarding allowing access to people who have already been security vetted. Where Special Constable are responsible for visitors, the SOPs provide that a person can be denied entry if there are adverse findings or there is not an admin event on the relevant Central Names Index ("CNI") profile which means they have not been vetted: see for example, SOP - PHQ, at p 19, paragraph 10.2. In respect of the PHQ, when a person is denied entry, there is a requirement that this be recorded on the narrative of their profile and they "are not to be given access until otherwise informed via the [SVU] or most Senior Officer via the chain of command". Field Supervisor Saraceno gave evidence that, "If it [is] an emergency repair or contractor, they may not have gone through the SVU then the SC still needs to do a COPS check to ensure that they have nothing adverse or any intel reports": Saraceno affidavit at par 72.
We do not consider the requirement of Special Constables to access WebCOPS to discover if a person has been security vetted as additional work value. The task is essentially the same as it was prior to introduction of WebCOPS and does not require the application of increased or additional judgement. Indeed, the SOPs relating to some of the sites clearly provide that there is no requirement to exercise any judgement if there is no admin event recorded. The Special Constable can simply choose to deny entry and refer the decision of entry to the SUV and/or the most Senior Officer in the chain of command.
The process described by Field Supervisor Saraceno for Special Constables to check if a person has been vetted through WebCOPS is directly analogous to the scenario that existed prior to the datum point, where Special Constables were provided with a list of people permitted to enter the relevant area. The only difference is that list is to be accessed electronically rather than on an excel spreadsheet. This is not an increase in work value.
Where there is no "admin event" entry in WebCOPS, Special Constables have the discretion to deny entry. However, Special Constables now have capacity to search WebCOPS for an adverse event and decide to allow or deny a person entry. The evidence of Field Supervisor Saraceno as set out above suggests that this occurs on rare occasions. In cases where there is no adverse entry against the individual's CNI, that task is not difficult, and the person would be allowed to enter. However, the task may require additional skills and expertise, where there is an "adverse" event recorded, and the decision whether to allow or deny the person access is not clear or obvious. Senior Special Constable Walker gave evidence that when faced with such circumstances, Special Constables would be expected to seek guidance from him in his role, and if he was in any doubt, he would contact the Field Supervisor. Further, he gave evidence that if there is any doubt, the discretion would be exercised in favour of not permitting access: Tcpt, 3 August 2023, p 253 (48) - p 254 (23). This evidence was consistent with that of Field Supervisor Saraceno: Tcpt 2 August 2023, p 127 (30). We note also that Special Constables have always been required to manage the reaction of people who have denied access to a site.
The PSA's evidence was that Field Supervisors have had access to COPS from around 2000, prior to the datum point: Tcpt, 2 August 2023, p 125 (4). Superintendent Smith gave evidence that during his tenure in charge of Special Constables (26 June 2007 to August 2010), Field Supervisors "such as Mr Saraceno" had access to COPS (for which WebCOPS is now the interface) and were engaged in tasks such as "visitor screening, like contractor screening": Tcpt, 8 August 2023, p 468 (22)-(25).
In conclusion, we find that the PSA has established that there may be additional judgement required to be exercised by Special Constables in respect of the decision to allow entry to people or a vehicle who have not already been vetted by the SVU. However, this requirement is not relevant to all sites where Special Constables work. Further, the additional judgement is rarely required to be exercised at those sites, and if the Special Constable has any doubt, the expectation is that the decision is to be supported by a more senior Special Constable, with a discretion to deny entry. The additional judgement that may be required to be exercised does not demonstrate a significant increase in work value for Special Constables.
For completeness we have also considered the PSA reference to the provision of MobiPol allowing for access in the field to WebCOPS. We are unable to see how this changes our conclusions with respect to the work value claim relating to the introduction of WebCOPS.

[25]

MIST

The Agreed Statement of Fact provides as follows in respect of MIST duties (pars 144-145): "From approximately 2008 to 2018, Special Constables were deployed to the Major Incident Support Team (MIST). The MIST was primarily responsible for providing and coordinating protective services around NSW for domestic and foreign dignitaries and special events. The MIST no longer exists. One FS from the SMG was allocated as a coordinator of Special Constables who were deployed to the MIST from time-to-time between 2008 to 2018." (Emphasis in original)
The PSA raised the issue of the MIST duties previously performed by Special Constables in the context of its argument that the skills of Special Constables are currently underutilised. The PSA led a considerable amount of evidence in respect of the MIST duties performed by Special Constables. These duties included, by way of examples (Saraceno affidavit: Exhibit TS-1 at Tab 26): 1. Services to the Prime Minister's Office for cabinet meetings. 2. Security services for VIP visits, such as the President of China, the Prime Minister of Iraq and a member of the Royal Family. 3. Crime scene duties and protection at an active murder crime scene in Cabramatta. 4. Security presence and vetting at a Police Attestation Parade.
In summary, the MIST duties involved Special Constables undertaking overtime shifts to perform extra services for particular dignitaries, at special events, or at remote Command posts established by the NSW Police Force. There is no evidence that the work performed required additional training.
The PSA submitted (par 97 of PSAS): "…The capacity of special constables to discharge these duties again represents a resource that is currently under-utilised. The skills associated with the MIST unit are surely transferable to user pay events such as music festivals and other public events were people management by uniformed special constables would assist and support police numbers."
Special Constables have not been required to conduct MIST duties for more than 5 years. There was no evidence that Special Constables will be required to conduct work associated with the MIST functions in the future. The fact that Special Constables have the skills and capacity to conduct certain work they are not engaged to perform, does not support a claim for higher remuneration based on work value. We agree with the Police Commissioner that at a fundamental level, increasing remuneration to Special Constables for work they do not perform is inconsistent with the notion of paying fair and reasonable entitlements to Special Constables.

[26]

Accountability Key Responsibilities

The PSA relies upon the requirement of Special Constables to submit quarterly Accountability Key Responsibilities ("AKR") reports to support its work value claim: see par 14(g) of the Application. The ASOF provides the following with respect to this task (ASOF at pars 128-133): "Accountability Key Responsibility Reports (AKR) 128. Since about 2014, all Special Constables, SSCs and FSs have been required to complete AKR reports. 129. AKR reports are a tool by which Special Constables document their own performance in relation to the operational standards and requirements of the role. 130. The standards include confirming that the Special Constables [sic] annual leave balance is under 228 hours, their sick leave is managed and they are operationally competent. 131. SSCs are required to review and comment on the AKR reports completed by the Special Constables that they supervise including assessing whether the Special Constable has met the standards in the AKR. 132. FSs are required to review the AKRs of the SSCs and to review the reports prepared by the SSCs of the Special Constables under their supervision. 133. A Senior Sergeant within the SMG will then conduct a review of the AKR reports of the FSs."
The evidence of the PSA witnesses supports the conclusion that Special Constables were always required to participate in performance evaluations. The change in 2014 was that this process became digitised: see par 68 of the Palmer first statement; Tcpt 2 August 2023, p 123 (7)-(14). Field Supervisor Saraceno's evidence included an example of an email from Jacob Reeves, Senior Sergeant, Coordinator of the SMU, outlining the AKRs for March 2018: Exhibit TS-1 to Saraceno affidavit at pp 39-40. In addition to checking items for annual leave and sick leave, these required Special Constables to outline how they have met their responsibilities in relation to aspects of the "Respectful Workplace Guideline". The email states that "It is expected that a meaningful response will be given, not simply a line or two." This is a relatively straightforward request.
Neither of the experts gave evidence that the introduction of the quarterly AKRs increased the work value of Special Constables. Dr Lyons' opinion was that that AKRs may have added to the workloads of those in supervisory positions, and he was otherwise unable to offer an opinion on the introduction of quarterly AKRs: Lyons first report at par 80. In his second report, Dr Lyons recited parts of the respondent's evidence referring to the AKR requirements, but still did not offer an opinion as to whether it increased work value: Dr Lyons second report at pars 40-42.
Associate Professor O'Brien's report opined that the PSA's lay evidence presents as a basis to conclude that the AKRs merely reflect a technological advancement or adaptation to an existing process of performance reviews. He stated that "the requirement has not changed the nature of work, skills, responsibilities or conditions under which work is performed.": par 111 of O'Brien first report. This opinion was not challenged by Dr Lyons in his subsequent evidence.
The PSA argued that the use of AKRs (along with the CMF Audit requirements) has significance because the key functions of Special Constables are not administrative or desk based. It was put that in those circumstances the introduction of compulsory computer-based inputs reflects a change in work value at a level that can be appropriately taken into account for the purposes of setting salaries that properly value the work: PSAS at par 50.
Further, the PSA submitted that the fact that Special Constables are now required, on a quarterly basis, to reflect upon and complete a paragraph of self-assessment of their own performance is indicative of increased accountability. It was put that the latter involves self-assessment skills otherwise not in play when a supervisor conducts the same evaluation: PSARS at pars 49-50.
We are not persuaded that the AKR process engages the work value sub-principle in respect of Special Constables. The evidence demonstrates that it does not amount to a change in the nature of work, skills or responsibilities required, nor a change to conditions under which work is performed. At best, it reflects a change in how the performance of Special Constables are managed with the introduction of systems and practices that are enhanced by the ordinary progression of technology.
Completing the AKRs is not a significant net addition to work requirements: WFP 6.2(a). Special Constables were required to engage in a performance management process before the datum point. We reject the PSA's submission that the requirement to self-assess and reflect is a new skill. All performance management systems require this to some extent and Special Constables were required to participate in performance processes prior to the datum point. There was no evidence to suggest that the completion of AKRs required a level of computer skills beyond those which Special Constables would have been required to possess prior to the datum point.

[27]

Command Management Framework Audits

The PSA relies upon the requirement of Special Constables to use the CMF Audits to support its work value claim: 14 of the Application. The ASOF provided the following with respect to the CMF Audits (ASOF at pars 134-141): "Command Management Framework (CMF) Audits 134. The CMF is a risk based, self-assessment process which is tool used by the NSWPF to better manage operations and improve accountability. 135. Since at least 2016, SSCs and FSs have been required to complete CMF audits via a CMF computerised CMF program. Prior to this time, the completion of audits was completed by SSCs and FSs and was paper based. 136. FSs or SSCs are currently required to complete daily, weekly monthly and quarterly tasks on CMF. 137.CMF audits which must be completed on a daily basis include: a. confirming the daily roster is accurate; b. confirming that a white level inspection in relation to the site was completed at the beginning and end of each shift and ensuring anything suspicious or requiring attention is reported; c. confirming staff operational readiness for their shift including ensuring that each Special Constable is correctly dressed; and d. confirming safety and storage of firearms. 138. CMF audits which must be completed on a weekly basis include: a. reporting on whether all firearms and portable equipment are accounted for; b. reporting of firearm storage and safety; c. reporting on workstations; d. reporting on security of lockers; e. reporting on ballistic vests; f. reporting on tasers; g. conducting vehicle inspections; and h. conducting taser inspections and weekly spark tests. 139. CMF audits which must be completed on a monthly basis include: a. extended monthly spark test; b. downloading the spark test footage of all tasers at the site and uploading this footage to the NSWPF server; c. taser register inspection and upload of the taser register; and d. conducting notebook checks. 140. FSs and SSCs are also required to conduct quarterly reviews of equipment, including firearms, taser and ammunition and report this information via the P359 and CMF. 141. There are additional audits that are completed by SSCs and FSs which are not recorded on the CMF."
Field Supervisor Saraceno gave evidence that the CMF Audits were introduced in January 2006 with an "electronic version" coming into operation in December 2016. He stated that the use of CMF Audits increased the accountability and audit responsibilities of Senior Special Constables and Field Supervisors. His evidence was that this work was completed for far less cost than when completed by Sergeants and Duty Officers within Police Stations and other Commands: Saraceno affidavit at pars 110-115.
In the 2012 Police Salaries case, the Full Bench concluded that CMF Audits did not significantly improve the performance or responsibilities to Police Officers, stating at [394]-[395]: "The 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. We 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."
Dr Lyons acknowledged the above findings of the Full Bench in his first report. Although he indicated that the conclusions of the Full Bench may not apply to Senior Special Constables, his report does not explain why it may not. He ultimately concluded that, "without further information about the impact the CMF has on the work of [SSC's], I am unable to express an opinion on this topic": Dr Lyons first report at par 81. Dr Lyons did not provide a further opinion in respect of the impact of CMF Audits on work value in his second or third report. Despite this, the PSA maintained that the introduction of CMF supported its work value claim.
Associate Professor O'Brien adopted the view taken by the Commission in the 2012 Police Salaries case that the introduction of CMF does not represent a change to work value: O'Brien first report at pars 112-117.
As stated above at [153], the PSA also argued that the introduction of CMF has significance given that the key function of Special Constables is not administrative or desk based.
In its oral submissions, the PSA also argued that CMF duties are not performed by police officers under the rank of Sergeants. We understand that this was a submission to the effect that these are higher level duties for Senior Special Constables: 15 November 2023, p 71(50) - p 72(2).
The Police Commissioner placed emphasis on the agreed fact that prior to CMF being rolled out in 2016, the completion of audits was undertaken by Field Supervisors and Senior Special Constables, but was paper-based. It was argued that the CMF is nothing more than a technological advancement, that carries with it no change to the actual nature of the work, skills or duties performed by Special Constables, such that the work value sub-principles are not engaged: 15 November 2023, p 39 (24)-(33).
The Police Commissioner argued further that the tasks to be undertaken by Field Supervisors and Senior Special Constables as part of their CMF obligations are neither onerous, nor require any additional skills or expertise. Further, it was submitted that none consume any significant periods of time, and these are the types of administrative duties expected of Field Supervisors and Senior Special Constables in their supervisory roles, in the absence of them performing actual security duties: PCS at pars 196-201.
The introduction of the CMF does not represent an increase in work value for the reasons summarised above in the Police Commissioner's submissions. Neither of the parties' expert evidence supported a different view.
We reject the PSA's argument that this change has more significance because the role of Special Constables has not traditionally been administrative or desk-based for the same reasons we rejected that argument in the context of the introduction of the AKRs at [156]. The evidence demonstrates that there have always been administrative elements to the role of Special Constables, and more so for Senior Special Constables and Field Supervisors.
We have been unable to distinguish the circumstances of Special Constables with respect to the introduction of CMF in the 2012 Police Salaries case. We add that the duties relating to CMF do not apply to all Special Constables, only Senior Special Constables and Field Supervisors, and it would be contrary to WFPs to apply a wage increase to all Special Constables for work performed by a discrete subset of the workforce.
To the extent that the PSA argued that the CMF duties are being performed by Senior Special Constables for less money than Police Officers with higher salaries, we observe that this argument was not developed in any meaningful way. In any event, it is not apparent how this is relevant to a determination of whether there has been an increase in the work value of Special Constables. The fact that CMF duties are undertaken by Police Officers in higher paying positions does not necessarily mean that the work of the Special Constables is undervalued.

[28]

Productivity and efficiency Case

The PSA claims a pay increase to Special Constables based on productivity and efficiency increases. There are two bases upon which it makes this claim (Application at pars 16-17A): 1. Special Constables engaging in duties as weapons trainers; and 2. The generation of income from Special Constables performing work at user pay sites.
For convenience we reproduce WFP 8.3 below: "8.3 Productivity and Efficiency Considerations 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."
With respect to the generation of income at user pay sites, the ASOF provides: "User Pay sites 64. The sites at which Special Constables work that are not locations under the control of the NSWPF are called 'user pay sites' and the services of Special Constables are provided to the various NSW Government departments and agencies on a cost recovery basis."
The following are current user pay sites: 1. ODPP; 2. DPC; 3. ICAC; 4. Parliament House; and 5. Government House.
In its closing oral submissions, the PSA clarified its position with respect to the productivity and efficiency claim as follows (Tcpt, 15 November 2023, p 24 (27)-(34)): "There is a minor matter which is contentious, it's set out in the awards, it's to do with the question of the use of the words 'user pays' in the agreed statement of facts. The applicant wrote to the respondent earlier this week and asked for some evidence about the way in which that process is actually engaged in. That is, the process of how the charge to user pays sites is quantified because, as the Commission is aware, we say that the use of the words 'user pays' was never intended to be a term of art in the agreed statement of facts. The respondent says, 'Well, you agreed to it. Too bad.' All we've asked for is some information that discloses to us that it is user pays and that there's no revenue generated on top of that. But the respondent says, 'No, you're bound by your agreed statement of facts. We're not going to give it to you.' It's a matter we may pursue further. It's a point of contention, but at the end of the day, it's around the question of revenue generation versus, simply, cost recovery. Cost recovery is the words used in the agreed statement of facts. A number of the witnesses refer to those sites being revenue generating, and so there are - there's obviously a point of contention about it. We had hoped that the police would simply tell us, 'Yes, here's our calculations. That's why we say that it's cost recovery.' But they don't want to do that."
It remained unclear at the conclusion of the matter what the PSA's claim was with respect to the user pay sites and how it supported its case pursuant to the WFPs and in particular, the productivity and efficiency principle. The PSA led evidence that the Police Commissioner generates revenue from the user pay sites: see for example, Bradshaw first affidavit at pars 38-40 and Exhibit NB-1 to that affidavit at pp 290-291. The fact that revenue is generated from the services of Special Constables was not in contest. Whilst we accept the parties may not have had a common understanding of what "user pay" and "cost recovery" meant when agreeing the ASOF, the PSA has not established on the evidence that the Police Commissioner generates a profit from the user pay sites. The PSA argued in its written submissions that even if it is currently limited to "cost recovery only" (which we note was the agreed fact in the ASOF), "that means that further salary increases will be covered within the cost-recovery calculation, and further it does not preclude further arrangements being on a for-profit basis": PSASR at par 79. The PSA led no evidence to demonstrate that provision of the service of Special Constables was to become a profit-making exercise in the future. In any event, this could not support a claim for an increase in pay now.
There is no evidence to demonstrate productivity and efficiency measures that have delivered substantial costs savings or productivity or efficiency improvement to the Police Commissioner, because of the provision of services at the user pay sites. Nor is there evidence that Special Constables at user pay sites have made a substantial contribution towards the attainment of the objectives of the employer in seeking to become more competitive and/or efficient, to which Special Constables have made a significant contribution.
The most detailed account of the Weapons Training conducted by Special Constables was provided by Senior Special Constable Carnevale. In summary, he gave evidence that (Carnevale first statement at par 36-58): 1. The opportunity for Special Constables to become Weapons Instructors was introduced in 1997/1998. 2. He became a Weapons Instructor Level 2 in 1998, completing a 7-week training course and three months of field training. In 2005 he achieved a Level 3 qualification. As Weapons Instructors, Special Constables are required to be re-accredited every 12 months. 3. As a Weapons Instructor, he has tutored: 1. other Special Constables; 2. Police recruits at the Police Academy; 3. Police Officers returning from injury; 4. Police Officers, including Senior Police in annual firearms and defensive tactics training; 5. Sheriff Officers around NSW in weapons and defensive tactics in 2010; 6. Rail Corp Transit Officers in 2012 in weapons and defensive tactics for six months as a secondee. 1. In around 2012 or 2013, he was seconded to the Ku-ring-gai Weapons Training Unit as a full-time Instructor for about 12 months, returning as the Training Coordinator of the SMU from 2014 to mid-2016. After this he ceased the Weapons Instructor duties in 2016 and was replaced by Senior Special Constable Andrew Maroney, who is part time Weapons Instructor and full time Education Officer. 2. He received an extra $50 per fortnight for his responsibilities as a Training Coordinator, after an industrial dispute filed with the Commission. This was about 7 years after he commenced in this role.
It is unclear from the evidence of Senior Special Constable Carnevale if the $50 allowance he received was partially in recognition to his role as a Weapons Instructor, or just in respect of his position as Training Coordinator.
In addition to Senior Special Constables Carnevale's evidence, the PSA led evidence that Special Constable Weapons Instructors provide AAO training, training in the use of tasers in 2018, and annual re-accreditation in defensive tactics training: Flockhart first statement at par 39; Walker first statement at par 40; Draper first statement at pars 22-24. Special Constable Draper, who had trained as a Police Officer at the Police Academy, stated in his written evidence that in his view, the training provided by Special Constable Weapons Instructors is superior to the training he received at the Police Academy, for reasons including the consistency in approach.
The PSA did not meaningfully develop its submissions with respect to how the fact of Special Constables being Weapons Instructors supported its claim pursuant to the productivity and efficiency sub-principle of the WFPs. There is no doubt the work undertaken by Special Constables as Weapons Instructors is important. Without more, it does seem incongruent that Police Officers who are Weapons Instructors receive an allowance for the attainment of their qualifications while Special Constables do not: Carnevale first statement at par 52. However, that is a different issue. The Commission is concerned with whether the evidence demonstrates 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 in seeking to become more competitive and/or efficient, to which employees have made a significant contribution. The evidence with respect to Weapons Training simply does not establish this.

[29]

Special case

The PSA claims a pay increase for Special Constables based on Special Case considerations. The Application states at pars 18-19: "The Applicant relies on the foregoing to establish facts demonstrating special circumstances that render the conditions of employment in the current award no longer fair and reasonable. Further, and in addition, Special Constables perform duties at a higher level to those of sheriff officers."
The WFPs provide the following with respect to Special Cases: 8.2 Special Case Considerations A claim for increases in wages and salaries, or changes in conditions in awards, other than those allowed elsewhere in the Principles, and which is not based on work value and/or productivity and efficiency pursuant to this Principle, will be processed as a special case in accordance with the principles laid down in Re Operational Ambulance Officers (State) Award [2001] NSWIRComm 331; (2001) 113 IR 384 and the cases referred to in that case at [165][168].
The principles as they apply to Special Cases were summarised in Re Operational Ambulance Officers (State) Award [2001] NSWIRComm 331 at [168]: "A number of principles may be distilled from these authorities bearing upon the contention advanced by the HAC. In order to make out a special case the applicant is required to make out that the variation is necessary to establish fair and reasonable conditions of employment and that the matter has special attributes. In doing so, the applicant is not required to meet a higher onus or standard of proof. The evidentiary requirements of a special case are no more strict than would apply in an ordinary matter, although the applicant to a special case will need to establish an adequate evidentiary foundation for those factors which are relied upon as showing the special case attributes of the case. Whilst respect will be afforded [to] earlier decisions of the Commission or its predecessors, the conditions of employment earlier established need to be ultimately tested against the requirements of s 10 of the Act and that which we have discussed as being applicable to making out a special case. Where, as here, the former decision involved a test case, particular care should be taken to ensure that the factors relied upon by an applicant in support of its claim do not replicate factors which were taken into account by the Commission or its predecessors in establishing the general standard emerging from such case. In any event, the basis for and circumstances under which the conditions in the award were established will be significant considerations in the Commission's deliberations in order to assess whether the factors relied upon by the applicant in support of a special case have already been accommodated by the earlier made award (in which case the present prescription may adequately compensate for those factors)."
The PSA submitted (par 9(a) of PSAS): "Although the Work Value principles may be 'inapt' due to the absence of a previous work value assessment of the work of special constables, the applicant recognises that they apply. Given the historic absence of a work value assessment, however, the Commission would hesitate to allow the datum point requirement in the Work Value principles to limit a salary that the Commission otherwise thought was just and reasonable. Of course, the application of the Special Case principle may avoid this issue."
The PSA relied upon [144] of the Re Equal Remuneration Principle (2000) 97 IR 177 where it was stated: "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."
In the 2012 Police Salaries case, the Full Bench was concerned with a claim based on Special Case considerations where historical or intrinsic undervaluation was relied upon. In that matter, the Full Bench stated that reliance upon Re Equal Remuneration Principle as set out above needed to be approached with caution given the circumstances within which the claim was brought. Re Equal Remuneration involved a claim of undervaluation in the context of the examination of a special class of workers, namely female employees, and the statutory regime in respect of equal remuneration: [88].
However, the Full Bench in 2012 Police Salaries, after referring at [90] to Health Employees Pharmacists (State) Award [2003] NSWIRComm 453; (2003) 132 IR 244 at [33], concluded at [91]: "We 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."
The PSA stated its case with respect to the Special Case considerations most clearly in its written submissions in reply as follows (pars 80-85 PSASR): "Special Case 80. Whether a case fits within the Special Case principle is to be determined according to the circumstances of the case itself. Special constables have special attributes, and fall outside of the ordinary, for the reasons identified in the Further Amended Application. 81. Special constables are a small group of employees performing unique work that is essential to the safety and security of police establishments, police officers, other police employees, significant sites attended by politicians and dignitaries, parts of which are also open to the public. 82. As such, the work they perform is a crucial part of preserving the operation of democracy in the state of New South Wales. 83. The work has not been valued since the first award was made in 1956 when special constables were separated from the Watchmen, Caretaker and Cleaner categories of public sector employment, and it is not apparent how any valuation of the work occurred at that time. What is apparent is that the work of special constables has changed significantly since 1956. 84. Where no work value assessment has occurred, the Commission is not inhibited by the fact that the Award has been made and re-made over the years. The primary focus is whether the Award currently sets fair and reasonable conditions of employment. 85. The foregoing matters invoke and engage the principles in Re Operational Ambulances Officers (State) Award." (footnote omitted)
In its closing oral submissions, the PSA continued to press the Special Case aspect of its claim. However. it did not develop its case with respect to the comparison with Sherriff Officers. Rather, it submitted (Tcpt, 15 November 2023, p 70 (26)-(28)): "The applicant's case was never comparing to Sherriff's officers and the applicant's case was never comparing to police officers in the way that the respondent has characterised it."
The PSA did not otherwise make submissions either orally or in writing addressing the claim in the Application that Special Constables perform work at a higher level than Sherriff Officers warranting a pay increase based on the Special Case considerations.
As best we can understand, and although it was not specifically stated as such in either the Application or written submissions, the PSA claims a pay increase for Special Constables based on a historical or intrinsic undervaluation of their work.
For the PSA to make out that this matter attracts the Special Case principle, it will need to establish the following: 1. The matter possesses special attributes, or that it is out of the ordinary. 2. That can be demonstrated by: 1. the fact that there has been a historic or intrinsic undervaluation of the work of Special Constables; and 2. as a consequence, the Current Award does not set fair and reasonable conditions of employment. 1. An increase in salaries is warranted in order to set such fair and reasonable conditions.
Our consideration of these three questions necessarily overlaps. For example, if the PSA can establish that there has been a historical or intrinsic undervaluation of the work performed by Special Constables, this will be relevant to whether the matter possesses special attributes and whether the existing award sets fair and reasonable conditions of employment. It is convenient to consider whether there has been a historic or intrinsic undervaluation of the work of Special Constables first.

[30]

Has there been a historic or intrinsic undervaluation of the work of Special Constables?

The starting point for the Full Bench's consideration is the requirement imposed by s 10 of the Act, that the Commission make awards setting fair and reasonable conditions of employment. In Re Pastoral Industry State Award [2000] 104 IR 168 it was stated at [77]: "Existing award conditions are, of course, not immutable. Subject to compliance with the requirements of the Act and applicable principles, they can be varied upon the basis of the consent of the parties, or in the case of contested proceedings, if a case is made out on the evidence, upon the basis that the award conditions in question no longer provide fair and reasonable conditions of employment. In a contested case, the onus falls on the applicant to make out a case for an alteration to an award, which otherwise will remain undisturbed."
The PSA submitted that if an undervaluation is established, it follows that the Award no longer sets fair and reasonable conditions of employment. The PSA argued that if such undervaluation is found, the jurisdiction of the Commission to "fix it" is enlivened and the matter should not be dismissed without more: Tcpt 15 November 2023, p 63 (19)-(33).
The PSA's written submissions summarised the tasks undertaken by Special Constables, including (but not limited to) the requirement to wear and utilise appointments, the expectation to put themselves in harm's way if required, to exercise police powers, to operate specialised equipment such as x-ray machines for screening purposes, to comply with the NSW Police Force documentary and accountability regime, to exercise high level interpersonal and communication skills, and to exercise judgement about risks. It was noted that Senior Special Constables have responsibility for those reporting to them, the efficient running of the post and must have some supervisory and people management skills, while the role of Field Supervisors was previously undertaken by Sergeants. The PSA submitted that the remuneration of Special Constables, Senior Special Constables and Field Supervisors does not reflect these skills and responsibilities.
The PSA submitted that it is in a difficult position in terms of establishing intrinsic or historic undervaluation because the parties are in dispute with respect to the position description of Special Constables. The PSA argued that this precluded it from being able to compare the work of Special Constables with other occupations. Ordinarily, in order to find a historic or intrinsic undervaluation of work with respect to an occupation such as Special Constables, the Commission would require objective evidence of the skill levels required for the occupation and roles to facilitate a comparison with the skill levels required in other occupations. That analysis is necessary for the next step to be taken, namely, to consider if those with the same or similar skill levels are being paid more, less or the same.
The PSA contended that Commission ought to find that there was an undervaluation and that the "question of what is the right payment, that is a matter that falls within the Commission's jurisdiction to determine, and it may be as broad as a common law judge setting a non‑economic loss component; it's difficult to do, but I have to do it based on the evidence that I have before me": Tcpt, 15 November 2023, p 63 (19) - p 64 (1).
The PSA submitted that the proposed increases and new increments are reflected in the evidence. However, it argued that with respect to the task of setting fair and reasonable conditions of employment, the existing award can be used as a "reference point" and the parties ordered to confer or be directed to file additional evidence.
Other than in In Re Special Constables (Police Department) Award [1956] AR 880 ("1956 Special Constables Award case"), there has not been a case before this Commission that considered the work value of Special Constables. The PSA submitted that since the 1956 Special Constables Award case, the difference in the work of Special Constables is stark, including in respect of: 1. the requirement of Special Constables to carry firearms as a matter of course; 2. the requirement to rotate their place of work; 3. the introduction of SOPs; 4. being referred to as officers and "looking and behaving" like Police Officers with police powers; and 5. the fact of Special Constables no longer reporting to Police Officers, but instead are "self-contained."
The PSA argued that none of these changes was taken into account in the Commission's previous decisions relating to the conditions of employment of Special Constables. It contended that (Tcpt 15 November 2023, at p 66 (15)-(27)): "…it is, rather than a historic undervaluation case in terms, it is a fact that historically they have not been valued. And that, we say, is significant, given the particular nature of this work, which is highly specialised. The process of utilising the different components of the work value principles, the police case, we say, says that you can use an accumulative approach and you don't need much. You have to satisfy the special case, but the fact of non-valuation, we say, by itself is sufficient when you tie it together with the fact that this is work that is sui generis. It is its own kind. You cannot point to another employee, public sector or private sector, that has the powers and does the work and has the protections that you can go out and shoot a terrorist and you're totally protected, as you should be. But, that's not something that applies at large to people. These are the sorts of features that mean that this group, small as they are, deserve a proper process of valuation."
The PSA contended that the current award is an appropriate "spring-board" to add the percentage increases sought and the proposed additional increments. It argued that the increases still fall within the Clerk 1-2 Grade salaries (of the Crown Employees (NSW Police Force Administrative Officers and Temporary Employees) Award 2009) and sought to distinguish this case from Re Crown Librarians, Library Officers and Archivists Award Proceedings - Applications under the Equal Remuneration Principle [2002] NSWIRComm 55 and Re Miscellaneous Workers Kindergartens and Child Care Centres &c (State) Award [2006] NSWIRComm 64 where the increases sought would impact upon the relativities with roles requiring higher qualifications.
The PSA's case was that the approach should not be to start with the Federal Minimum Wage for security officers and "add a little". Nor should it be to start with Police Officer constables and "subtract a little". The PSA called on the Commission to take a detailed and nuanced approach.
Dr Lyons' opinion was that Special Constables are "undervalued" where that term is defined as "higher quality of labour for a given wage". He concluded that Special Constables in their first year of service ("entry classification") are "low paid", adopting the Fair Work Commission's ("FWC") definition of that term when interpreting s 134(1)(a) of the Fair Work Act 2009 (Cth) ("FW Act"). In Application to vary the wage rates in the Nurses Award 2010 and Aged Care Award 2010 [2022] FWCFB 200, the Full Bench stated: "[473] The Commission has consistently determined that a threshold of two-thirds of median full-time wages provides 'a suitable and operational benchmark for identifying who is low paid', within the meaning of s.134(1)(a) of the FW Act… As there is no accepted measure of two-thirds of median (adult) ordinary time earnings, we use two main ABS surveys that capture a distribution of earnings. These are the Characteristics of Employment Survey (the CoE Survey) and the Employee Earnings and Hours Survey (the EEH Survey). The most recent data for median earnings from the CoE Survey is for August 2021 and from the EEH Survey is for May 2021." (footnotes omitted)
The "low paid" threshold derived from the Employee Earning and Hours Survey ("EEHS") in May 2021 is $1,062 per week. Dr Lyons' conclusion that the entry classification is "low-paid" as defined above was based on the award weekly wage rates of the entry level classification for Special Constables of $1,062.60 which was applicable from 1 July 2021 (although referred to in his report as the 2018 rate). Dr Lyons concluded that the fact that newly appointed Special Constables are "low paid" is indicative of undervaluation of work.
Under cross-examination, Dr Lyons agreed that Special Constables are not "low paid" in the context of the salaries they received from 1 August 2023, although he equivocated that the EEHS figure was two years old, implying it is deflated. However, Dr Lyons conceded that because the comparative measure with the EEHS is against "total earnings", the Weekday and Weekend Allowances received by full-time Special Constables should be included and Special Constables are not therefore "low paid" as defined by the FWC when considering s 134(1)(a) of the FW Act: Tcpt 7 August 2023, pp 378 - 379; Lyons third report at par 11. However, Dr Lyons opined that the allowances do not reflect work value and "relative to the pay of the other NSW government sector classifications Special Constables are 'low paid'": Lyons third report at par 11.
Dr Lyons compared the remuneration of Special Constables to Clerk Grade 1-2, noting the latter is 20 per cent more than the entry classification. He dismisses the notion that Clerk Grade 1-2 positions involve greater levels of skills, concluding that this pay differential illustrates that the pay of Special Constables undervalues the knowledge, skills, responsibilities, and/or conditions under which their work is performed: Dr Lyons first report at par 10. He also expresses doubt that a Clerk Grade 1-2 is expected to exercise a significant degree of autonomy or use sound judgement to make timely decisions in potentially high-pressure situations, although he acknowledges the evidence of Assistant Commissioner Smith to the contrary in his second report, simultaneously noting that the Clerk Grade 1-2 positions are paid more than Special Constables: Lyons first report at par 94; Lyons second report at par 23.
After observing the principle that fair and reasonable conditions of employment needs to reflect changes to work value, Dr Lyons states that the fact that Special Constables have not had their work value assessed indicates that their work may be undervalued: Dr Lyons first report at par 19. He also refers to cl 20 of the Current Award that provides for training and development opportunities which he concludes NSW Police Force has provided, which he says is supported by its consideration of recognising a Certificate IV qualification in Protective Services: pars 20-21 of Dr Lyons first report.
In concluding that the work of Special Constables is "undervalued", Dr Lyons relies upon the work value considerations and in particular, changes identified since 2014. He also relies upon his comparison with the remuneration of Clerk Grade 1-2. Dr Lyons also points to the redesignation of the status of Special Constables from Ministerial employees to administrative employees, stating that "Applying the NSW PSC's Public Sector Capability Framework to the Special Constables classification has down played their law enforcement and protective security functions": Lyons first report at pars 91-95.
Dr Lyons suggests the Special Constable's work value should be assessed against Police Constables, noting that Special Constables do not perform all their functions, but the front line policing they engage in would be the same for a Constable as it is for Special Constables: Lyons first report at par 100.
The Police Commissioner submitted there was a lack of clarity in the PSA's claim with respect to the Special Case considerations: see for example, Tcpt, 15 November 2023, at p 61 (10)-(16). She argued that while Dr Lyons attempted to address the issue of historical undervaluation, he really does not do so beyond a bare ipse dixit: Tcpt, 15 November 2023, at p 61 (47)-(50). The Police Commissioner suggested that if the Commission were satisfied that there has been a historical undervaluation, it could require the parties to file and serve additional evidence to address this aspect of the matter: Tcpt, 15 November 2023, p 60 (1)-(12).
Associate Professor O'Brien's opinion is that Special Constables are not "low paid" as that concept has been defined by the FWC. He states that the opinion of Dr Lyons in this regard is "seriously flawed" as the Weekday and Weekend Allowances received by the Special Constables should be included in the relevant evaluation. Thus, he concluded that Special Constables in their first year of service did not receive $1,062.60, but $1,339.40 per week (from 1 July 2021). He argues that whether the allowances and penalties are associated with "work value" is irrelevant, noting that Special Constables receive these irrespective of their patterns of work. Associate Professor O'Brien concludes that when the allowances are included, Special Constables are not located anywhere near the "low-paid" threshold definition. Specifically, the revised remuneration places entry level Special Constables at the 43rd percentile of full-time adult non-managerial employees pursuant to the Household Income and Labour Dynamics of Australia data from 2021. Further, the annual salary of the Clerk Grade 1-2 level is $1,163.91 less than a Special Constable. Ultimately, Associate Professor O'Brien disagrees with the evaluation of Dr Lyons that the work of Special Constables is undervalued on the basis that they are "low-paid", stating that he cannot see any other direct arguments in support of this opinion in his report: O'Brien first report at pars 9; 156-163.
When considering wage relativities, Associate Professor O'Brien observes that when the increases sought by the PSA are included with penalties and allowances, a "considerable amount of leapfrogging occurs". He notes that prior to the inclusion of allowances and penalties, the relative earning of Special Constables for their first year of service "leapfrog" many Correctional Officer ranks and all Sherriff Officer ranks. After allowances and penalties are included, the increase for all ranks up to and including Special Constable (First Class) leapfrogs Police Constable comparators, various ranks of Correctional Officers, while Special Constables would earn 20 to 30 per cent more than all ranks of Sheriff's Officer comparators: O'Brien first report at par 12.

[31]

Consideration of the Special Case

The fact that the work value of Special Constables has not been valued since 1956 is not alone a sufficient basis to conclude that their work has been historically undervalued. Both parties referred to the 1956 Special Constables Award case in their opening and closing addresses. The decision relates to an application brought by the PSA for Special Constables to be "carved out" of the Crown Employees (General) and Watchmen, Caretakes, Cleaners, &c. Award ("Watchmen's Award") consequent upon those employees no longer being covered by the Federated Miscellaneous Workers' Union. The decision of McKeon J resulted in the first award for "watchmen employed as Special Constables by the Commissioner of Police".
At the time of the decision, there were 22 Special Constables located at Parliament House, Government House, the Treasury, PHQ, and the Criminal Investigation Branch. The decision contains a high-level summary of the duties being undertaken by Special Constables. There is reference to the Special Constables performing tasks such as patrolling, escort duties and maintaining security. The decision documents that Special Constables at the Treasury building were armed at all times, while those stationed at Parliament House and Government House were armed when on escort duties relating to the carrying of cash. The Special Constables at the Criminal Investigation Branch and Police Headquarters were noted as being unarmed: 1956 Special Constables Award case at pp 889-891.
The 1956 Special Constables Award case notes (at p 882) that the Watchmen's Award described the work of Special Constables as "[a]pplying to employees of the Police Department who are sworn in as Special Constables under the Police Offences Act, 1901-1951, and who are required to do duties for the safeguarding of persons and/or property at the Treasury Department, Government House, Parliament House, Police Headquarters, or the Criminal Investigation Branch". In addition, the decision documents the following: 1. As is the case now, Special Constables were required to carry a "warrant card" issued by the Police Department which provides that the Special Constable "has been appointed and sworn in as a special constable to act in and for the State of New South Wales in the employ of the Police Department": p 881. 2. Special Constables should not be referred to as "Officers", concluding that it is both accurate and sufficient to refer to these Special Constables as Watchmen employed as Special Constables employed by the Commissioner of Police at the various locations: p 887. 3. Special Constables were supplied with a uniform consisting of "tunic, trousers, cap, shirts, tie and boots": p 891. 4. Special Constables were visited during their shift by Police Officers to whom they reported: p 891.
Following a description of the duties of the Special Constables, McKeon J stated at p 891: "As the Commission held in the 1955 case to which I have alluded, these employees are really watchmen. That case revealed that there were many special constables employed in connection with industry generally, all of whom had precisely the same authority and performed the same type of functions, excepting, I would think, escort duty, as the employees with whom the Commission is here concerned, and all of whom were provided for under the Watchmen's Award. In my view, there is no reason why the Commission should not follow the pattern of that award. That is to say, it should prescribe a weekly rate of pay which will take into account the fact that the employees, with one exception, are required to perform their work on a rotating three-shift roster system, and it should then prescribe an additional payment for those who work on Saturday and Sunday."
The Commission determined that there should be a "composite wage", being one that takes into account all of the features of the work of Special Constables, including the requirement to work shift work, but provide separately for an allowance for weekend work: p 892.
The 1956 Special Constables Award case provides a "high-level" overview of the role of Special Constables. Comparing the role and functions of Special Constables described by McKeon J in that case against the evidence in these proceedings reveals there have been changes to the work of the Special Constables. Considering the passage of time this is not surprising. We agree with the Police Commissioner that fundamentally, the purpose of the role has remained the same - Special Constables are required to do duties related to the safeguarding of persons and/or property at the places they are directed to work. Their role remains one of providing security services, guarding sites, guarding people that work or have business within those sites. However, the way Special Constables undertake that work has evolved.
All Special Constables now carry firearms. Some were required to do so prior to 1956, and at all times in the case of those engaged at Treasury. Clearly, the Commission did take into account the requirement to carry firearms in the context of setting terms and conditions of employment of Special Constables at the time 1956 Special Constables Award case was handed down.
However, the requirement that Special Constables carry and be prepared to deploy arms is far more extensive now than it was in 1956. The evidence does not address the question of when this change occurred. The ASOF provided that between 1990 until 1995, Special Constables completed a two-day recruit training course which included weapons training, suggesting the requirement for all Special Constables was in place by 1990: at par 84. Field Supervisor Saraceno gave evidence of being issued with a revolver, 12 rounds of ammunition and a long baton when he commenced his employment and completed his training in 1990.
The ASOF recites the consent industrial arrangements applying to the parties above from 1975 to date (pars 12-36 of the ASOF). Mr Bradshaw also gave evidence in respect of this history, exhibiting the consent industrial instruments. There was no evidence before the Commission with respect to the negotiation process that took place resulting in the consent industrial arrangements the parties entered into and what was considered by them when doing so.
We accept the PSA's submissions that the requirement to carry and be ready to deploy appointments requires particular skills and comes with a very high level or responsibility. However, we are not able to make a finding that this has not been reflected in the terms and conditions of employment in the Current Award because circumstances have changed since the 1956 case, without more. There has been a considerable evolution of the terms and conditions of the employment of Special Constables since then.
We do not agree that Special Constables are, generally, required to both "look and behave" like Police Officers. The Special Constables' uniform looks similar to Police Officers, conveying the authority of the NSW Police Force. However, the position of Special Constable and Police Officer are fundamentally different.
The PSA's submission with respect to the relevance of the requirement of Special Constables to "rotate" was not developed and was unclear. Although the 1956 Special Constables Award case referred to particular individuals occupying specific roles in the context of explaining their work, no attention was devoted to the issue of any requirement, or lack thereof, to rotate through positions.
We do not agree that the introduction of the SOPs, which are in effect an articulation of the requirements of each post, demonstrates a significant change in the duties performed by Special Constable. To the contrary, the SOPs simply document the relevant requirements.
Finally, the fact of Special Constables ceasing to report to Police Officers does not demonstrate a "stark change" in their work duties such that their work should be considered undervalued. A change in the reporting lines of Special Constables does not demonstrate a material impact upon the actual role they perform.
Dr Lyons' evidentiary basis and reasoning with respect to his conclusion that generally, the work of Special Constables is undervalued is lacking. However, we do not agree entirely with the opinion of Associate Professor O'Brien that the Weekday and Weekend Allowances should be included in the context of considering whether Special Constables are "low-paid". We note that no full-time Special Constable received $1,062.60 per week from 1 July 2021, a time proximate to the EEHS. However, at least some are required to work unsociable hours to achieve this, without further compensation. As we have already noted, part-time and casual employees are not entitled to the Weekday and Weekend Allowances under the Current Award and this is an issue about which we direct the parties to confer.
We are unable to accept Dr Lyons's conclusions with respect to his comparison with the Clerk Grade 1-2 positions. This analysis was not based on evidence before the Commission or a detailed consideration of those roles, including what allowances Clerk Grade 1-2 employees would be entitled to if required to do shift work or weekend work.
The work of Special Constables is not directly comparable with that of Police Officers. To the extent Dr Lyons seeks to relate work of Special Constables to proactive policing work, we disagree that these are directly comparable and refer to the detailed account of what that work involves for Police Officers and how it has evolved over time at [95]-[442] of the 2012 Police Salaries case.
The PSA has not discharged its onus to establish that the work of Special Constables is historically or intrinsically undervalued. Accordingly, the PSA has not made out a Special Case pursuant to the WFPs: see [192] above.

[32]

Is there a skills shortage such that s 3(i) is enlivened?

The PSA submitted the work of Special Constables is undervalued. Based on this conclusion, it submitted the Commission would find that this is impacting upon the willingness of people to become Special Constables. Further, it was put that the requirement to work shift-work operates as a disincentive to potential recruits and that shortages are having an impact on the requirement to work overtime, which also increases costs to the Police Commissioner's operations. The PSA concluded that: "Together with all of the matters already the subject of extensive written and oral submissions in these proceedings, the introduction of 3(i) militates strongly in favour of wage rates being granted in the terms sought by the applicant."
The PSA relied upon the evidence of Field Supervisor Saraceno to support its submissions with respect to s 3(i) as follows (Saraceno affidavit): "11. In or around the end of 2015 after the terrorist incident referred to in paragraph 104 of the affidavit below, the then Superintendent of the Command, Superintendent John O'Reilly made an application to Andrew Scipione the then Commissioner of Police to increase the number of SCs. 12. My understanding is that this request was rejected by NSWPF. Instead of increasing the numbers of SCs, the Command Structure was increased as set out above with an [sic] more senior Police Officers added to the structure of the SMU. This was an increase from the one Inspector (Commander) and one Senior Sergeant who had been in charge of the SMU from 2000 to 2016. 13. Based on my observations over the last 30 years and my knowledge of NSWPF, the Command Structure would usually only be increased if there was an expansion of duties or an increase in the number of officers. The SMU now has a similar level of senior management as a large Police Area Command ("PAC"). An increase in this size results in a considerable additional cost but did not result in an increase in the number of SCs. For the last 5 years there have been chronic staff shortages in the SMU. The introduction of the overwatch scheme in 2015 referred to below caused an additional strain on staffing levels. I recall a former Superintendent Martin Hastings told me that he was putting two officers against one SAP number as there was not actually enough staff to cover the overwatch scheme. SAP stands for System Applications and Products in Data Processing and is the software system that manages all staff attendance and leave records."
This evidence falls short of establishing that there is a skills shortage that would be improved or resolved by awarding increases in remuneration to Special Constables. Field Supervisor Saraceno gives no insight into the cause of the chronic staff shortages referred to. Indeed, the evidence seems to suggest that the resourcing strain was caused or exacerbated by a decision or decisions not to increase the number of Special Constables within the SMU, in the context of changes to the Senior Management structure, and Overwatch being introduced.
The PSA also relied upon "incidental references" to staff shortages including Minutes of Meeting of the Joint Consultation Committee on 13 July 2022 ("Minutes") (PSA 9 pp 21-24); and the Security Management Unit - Functional Review 2018 ("Functional Review") (PSA 9 pp 98-112). We will consider this evidence in turn.
The Minutes do not evidence a skills shortage or an inability to successfully recruit Special Constables. The Minutes record the following: 1. the progress of a recruitment process where interviews are "currently underway"; 2. Probationary Constables are "seeking to join the Unit" and that this had been successful in the past and was supported; 3. the SMU had sought to recruit 5 Special Constable positions for up to 4 years, as "an alternate recruitment strategy". 4. further consultation was requested with respect to the "'temporary' requirements" referred to above in point (3).
There is no indication in the Minutes of recruitment challenges whatsoever.
The PSA also relied upon reference in the Minutes to the "5 Team Roster". In the Minutes, there is a note that "due to current shortages in the roster, teams 1-5 can/may be impacted in order to fulfill operational requirements." The Commission has no context with respect to the reasons for the shortage referred to, what it was caused by, for how long it persisted, nor if it was able to be successfully managed. There was certainly nothing to indicate that it was caused by a skills shortage that could be rectified by an increase in the remuneration of Special Constables.
The Functional Review relied upon is now over 5 years old. In support of its contention that there is a skills shortage for Special Constables, the PSA referred to a statement in the Summary of the Functional Review that, "The demand for coverage is currently greater than the number of resources in the command and significantly affecting the budget and increasing the risk of fatigue on workers." This is not a reference to a skills shortage impacting on recruitment, but to the allocation of budgeted resources to the SMU to support further recruitment.
The Functional Review made recommendations with respect to the recruitment of Special Constables. The challenges reflected in the Functional Review include attracting suitable applicants, and a high turnover rate. Difficulties in recruitment are attributed to there being "few entry requirements, information on Special Constables is not provided on the NSW Police Force internet site and career paths are not clearly defined". In the context of these challenges, the Review recommended that the "SMU liaison with Education & Training Command, provide an overview of duties and define a career path for Special Constables on the intranet an internet site to assist with recruitment drives".
The Review refers to there being a "high-turn-over rate", but there is no detail provided with respect to the extent of the issue, nor the cause of it. It is raised in the context of the recruitment process being onerous on SMU staff, with a recommendation that the "SMU in consultation with Education & Training Command consider the Recruitment Process being managed by Education and Training Command". There is also a recommendation that the SMU "target potential recruits ie, unsuccessful police students as an entry level opportunity".
In summary, the Functional Review does not support a conclusion that there is a skills shortage preventing vacancies in the role of Special Constables being filled. Rather, it suggests that as of September 2018, there was a need to improve recruitment processes in areas such as communication about existing career pathways and strategic targeting of potential candidates to improve the outcomes of those processes. Although there is reference to high-turn-over, this was not a focus of the Functional Review.
The clearest evidence of skills shortages for Special Constables was that given by Superintendent McDonald that as at 15 February 2023, there were 180 Special Constables against 204 authorised positions: McDonald affidavit at par 10. Thus, more than 20 per cent of all positions were not filled at that time. In our view, that is a significant deficit. However, again, the Commission is not appraised of objective evidence of the reasons the SMU was not being staffed to capacity at that time, nor the extent to which accepting the PSA's application in part or full might resolve those issues. The Commission is not able to conclude that if remuneration were to be increased, any shortages would improve or be resolved. There are conceivably a broad range of reasons which may be contributing to the deficit.
We are not persuaded that the condition precedent in s 3(i) has been established, that there is a skills shortage affecting the recruitment of Special Constables. However, we agree with the PSA that if the work performed by Special Constables is undervalued, as we have found, it is consistent with s 3(i) that this be resolved.

[33]

Proposed changes to the incremental levels

The PSA sought new increments in the Proposed Award in respect of the levels of Special Constable First Class, Senior Special Constables, and Field Supervisors. No new increment was sought in respect of Special Constables. It was proposed that the new increments be time-based, meaning that each would apply automatically once the employee had been at a particular level for the relevant period of time.
In respect of the level Special Constable First Class, it was proposed that a second incremental level be established, such that employees at this level receive a pay increase after 12 months' service. In respect of Senior Special Constables and Field Supervisors, it was proposed that a new increment be added to the classification scales for those employees with three years or more of service at the relevant level.
Wage Fixing Principle 5.6 provides that new service increments may only be awarded to compensate for "changes in the work and/or conditions" and will be determined in accordance with the relevant provisions of the Arbitrated Case Principle.
We understand the PSA's claim for the new increments to be grounded in its submission that there has been historical or intrinsic undervaluation of the work of Special Constables. The PSA also argued that the Commission should recognise that more time in the job equates to greater experience and that the new increments would aid retention.
The PSA submitted that the fact that nearly every Special Constable rank and increment fits within the Clerk Grade 1-2 positions, suggests "a general undervaluation problem". It was submitted that this is particularly the case for Field Supervisors, "whose duties involve supervising and managing employees and rosters and being responsible for co-ordinating safety and security for specific events, and Senior Special Constables who have onsite supervisory responsibilities, and who are accountable for appointments at each site": PSAS at par 13.
The PSA contended that Field Supervisors are paid less than the first step of a Clerk Grade 5-6 position. It argued that "it is apparent that field supervisors with the responsibilities that they have and the evidence about the work that they took when they took on that job are performing work that is much more highly valued than the remuneration that they receive reflects, and that the amounts that we have sought for field supervisors is an appropriate reflection": Tcpt, 15 November 2024, p 24 (4)-(12). It was put that there was no evidence regarding how the salary for Field Supervisors was established, but that there is unchallenged evidence that the position of Field Supervisor replaced and immediately undertook all the same duties that had ben previously undertaken by police Sergeants.
The PSA also submitted that the additional increments are "appropriate as they provide an incentive for experienced Special Constables to remain in the job and recognise that the complexity of the work is such that longevity of employment co-relates with increased skill and experience": par 89 of AS.
The PSA's case in support of the new increments was put at a high level, without the requirements of WFP 5.6 being specifically or directly addressed in the evidence or submissions. It was put by the PSA in its final oral submissions (Tcpt, 15 November 2024, p 27 (33)-(50)): "But we certainly accept, by adding increments, we're changing internal relativities. If you add an increment, then you are adding an extra layer at a particular rank or a particular band, which, of course, will change the increment for that entire band. But we say that that's appropriate given the nature of the work and that, clearly, through someone like Senior Special Constable Gilbert, who has over a five or six‑year period moved from the base position to acting up as senior to then being appointed as senior, that that kind of progress, where it's available, reflects the development of skills, and that's what we say the evidence shows. But we understand that it's up to the Commission to look - and one of the things to look at is, is the very flat structure that currently exists for special constables appropriate? And if you decide, as we say, it's not and that further increments are necessary, it is ultimately a matter for the Commission as to how those internal relativities are fixed. But the one - the application that has been put before you, the further amended application, reflects the PSA, the applicant's best position, in consultation with its members, as to what's appropriate. That doesn't mean that it binds the Commission. We accept that."
As we have already set out, we have been unable to accept the PSA's claim that there has been a historical or instrinsic undervaluation of the work of Special Constables: see above at [214]-[231]. If the Commission were to create the new increments based on the simple proposition that more years of work equates to greater experience and skill, it is difficult to see how WFP 5.6 would ever have work to do. The PSA did not refer to any specific evidence to demonstrate that the new increments are necessary or appropriate as a part of a broader retention strategy. The PSA's case was not premised on the basis that Filed Supervisors work is the equivalent of Sergeants and there is no basis for the Commission to make such a finding. The PSA has not otherwise addressed nor demonstrated how the new increments proposed can be justified.

[34]

Conclusion with respect to Work Value, Productivity and efficiency and Special Case

The PSA has established that the nature and extent of changes in the work of Special Constables since the datum point, constitutes a significant net addition to work requirement as to warrant an increase in remuneration. The reasons for this are reflected in our findings above when considered against the work value sub-principle relating to the cumulative effect of the increased skills and responsibility associated with AAO, and the acquisition of skills associated with the provision of Tasers: see above at [104]; [89]-[93]. The Current Award does not set fair and reasonable conditions of employment in that it does not reflect these changes to work value of Special Constables, since 18 April 2000.
We do not accept that increases in the quantum sought by the PSA are justified on the evidence or that it would, in all of the circumstances, be in the public interest to award them.
We have decided that an increase of 2% is appropriate and consistent with the Commissioner's power to make awards setting fair and reasonable terms and conditions of employment.
In arriving at the increase, we have considered the relativities of salaries paid to Special Constables with those paid to Police Officers, Correctional Officers, Sherriff Officers and Security Guards. We are unable on the evidence to perform a qualitative analysis of the work performed in each occupation. Further, the payment of the Weekday and Weekend Allowances as addressed above at [32]-[45] require a consideration of the rates of pay both with and without penalties and allowances.
That is not to say that comparisons with Police Officers, Correctional Officers, Sherriff Officers, and Security Guards are irrelevant. An examination of the remuneration of the comparators undertaken by Associate Professor O'Brien, demonstrated that Special Constables earn under the Current Award (par 233 of PCS; O'Brien supplementary report at Tables 4.2 and 4.3): 1. around 81% to 91% (adjusted for penalties and allowances); and 73% to 81% (unadjusted for penalties and allowances) of Police Officers at the equivalent rank and grade; 2. around 75% to 89% (adjusted for penalties and allowances); or 75% to 88% (unadjusted for penalties and allowances) of what Correctional Officers earn at the equivalent grade and classification; 3. around 97% to 115% (adjusted for penalties and allowances); and 81% to 91.5% (unadjusted for penalties and allowances) of what Sheriffs earn at equivalent grades and classifications; and 4. around 110% to 131% (adjusted for penalties and allowances) and 112% to 142% (unadjusted for penalties and allowances) of what private sector security guards earn under the Security Services Industry Award (which we note, provides a minimum safety-net only).
The above summary tells against the appropriateness of the significant increases in remuneration sought in the Application. However, the increase we have awarded is appropriate in all of the circumstances and does not lead to inappropriate leapfrogging.
In arriving at our decision, we have also considered the quantum of increases to the Police Award founded (in part) on the acquisition of the skills necessary to carry tasers and completion of the AAO training, and the work and skill required to put this training in to action. The circumstances that existed at the time that those increases were made are relevant to this comparison, noting the relevant increases for Police Officers were a part of broader claim prior to the repeal of the Regulation with the outcomes only partially attributable to tasers and AAO training: see 2012 Police Salaries case and 2021 Police and Paramedics Salaries Case. As we have stated above at [104], we have accepted the PSA's submissions that the increases for Police Officers were greater in dollar terms given their higher remuneration levels, and in the context of the issuing of tasers, the uplift in skills for Special Constables was from a lower base and therefore proportionally greater.
We can see no reason for differential increases to the levels of Special Constables and inclusion of new incremental levels as proposed by the PSA for the reasons we have addressed above at [245]-[253].
We have decided to make an interim award for 6 months, to enable the parties to address the matters identified in this decision, including the provision of an allowance for Overwatch and the differential treatment of casual and part-time employees under the Current Award in respect of the Weekday and Weekend Allowances. We find that the making of an interim award is consistent with the objects of the Act and in particular, s 3 (a)-(c), (e) and (i). We have no evidence to suggest that the public interest militates against the making of the interim award on account of the state of the economy of New South Wales, or the effect of this decision on the economy: s 146 (2)(b)-(c)

[35]

S 164A Orders

The Police Commissioner moved on a motion for non-disclosure orders pursuant to s 164A of the Act ("s 164A application"), supported by an affidavit of Chief Inspector Michael Cruickshank sworn 6 November 2023. The PSA opposed the non-disclosure orders being sought in respect of some of the materials identified by the Police Commissioner. The parties filed written submissions in respect of the s 164A application prior to the final hearing day.
On the final hearing day, and separately, the PSA sought s 164A orders in respect of the Special Constables connected to the terrorist incident in which Curtis Cheng was murdered.
On 25 November 2023, the Full Bench made orders pursuant to s 164A in the following terms ("164A Orders"): The Commission Orders: 1. Pursuant to s 164A(1)(a)(i) of the Industrial Relations Act 1996 (NSW), until 14 November 2053, or further order of the Commission, whichever is the earlier, the disclosure in connection with these proceedings, of the name, address, picture, or other material that identifies or may lead to the identification in connection with the homicide of Curtis Cheng of the two Special Constables whose names are identified in Sch A to the application for orders pursuant to s 164A of the IR Act made by the Public Service Association and Professional Officers' Association Amalgamated Union of NSW (PSA) on 15 November 2023, is prohibited. 2. Pursuant to s 164A(1)(c) of the IR Act, until 14 November 2053, or further order of the Commission, whichever is the earlier, publication of the evidence or any other document lodged with the Commission that identifies or may lead to the identification of the Special Constables referred to in Order 1 in connection with the homicide of Curtis Cheng, is prohibited. 3. Pursuant to s 164A(1)(c) of the IR Act, until 14 November 2053, or further order of the Commission, whichever is the earlier, the publication of: a) the evidence identified in the table attached to the Submissions of the Respondent in respect of her application for orders pursuant to s 164A of the IR Act filed on 14 November 2023 with the exception of the document at Tab 1 of Exh PSA 1; and b) Annexure B to the affidavit of Chief Inspector Michael Cruickshank sworn 6 November 2023, is prohibited. 4. Pursuant to s 164A(1)(b) and (c) of the IR Act, if a third party seeks access to the transcript or files of the proceedings, the parties will be notified by the Industrial Registrar. The parties will have five working days to notify any application to the Commission with respect to the third party's request. If no application is made by a party then the Commissioner of Police must then: a) within five working days, or a greater period ordered by the Commission uplift the Commission's files (in so far as is necessary in connection with the third party request); and b) within a further ten working days, or greater period as the Commission orders: i. in so far as they relate to the third party request, provide to the Commission copies of the transcript of the proceedings and of the Commission's files redacted so as to allow for the documents to be provided to the third party in compliance with Orders 1, 2 and 3; and ii. return to the Commission, the Commission's files.
The parties agreed that Orders should be made to protect the identity of the Special Constables involved in the terrorist incident. However, the PSA sought orders that would have the names of the Special Constables changed to pseudonyms. The PSA submitted that the orders should be made on those terms because those were the terms upon which orders had been made in other proceedings before the Commission.
We accept that it is necessary in the interests of justice that a non-disclosure order is made in respect of material that may lead to the identification of the relevant Special Constables involved in the terrorist incident. However, we have determined that Orders 1 and 2 are sufficient for that purpose, and it is unnecessary to go further by concealing the identity of those individuals in the materials where it does not connect them to the terrorist incident.
By making Order 3, the Full Bench accepted the Police Commissioner's submissions over the PSA's opposition to certain materials being covered by the scope of the order.
The principles applying to the granting of an order pursuant to s 164A of the Act have been well traversed. Such orders are only to be made where the Commission is satisfied that such an order is necessary, in the interests of justice.
The Full Bench recently set out the applicable principles and authorities that pertain to applications for orders under s 164A of the in Secretary of the Department of Education v X [2023] NSWIRComm 1061 (at [30]-[66]). The Police Commissioner set out a concise summary of the principles identified in that decision in her submissions: 1. the fundamental rule at common law is that the administration of justice must occur in open Court, so that justice can be seen to be done; 2. the only departure from the aforementioned rule is where its observance would frustrate the administration of justice or for some other reason related to the preservation of the public interest; 3. mere embarrassment or distress to a person is not sufficient to warrant a non-publication order; 4. the bar to making a non-publication order is a high one, as the use of the word "necessary" in s 164A(3) makes plain; and 5. the Commission must be satisfied that, if a non-disclosure order is not made, some unacceptable consequences will flow, or may be assumed to flow.
We agree with the Police Commissioner's summary of the principles.
The PSA did not cavil with this summary of principles. However, the PSA referred to the decision in Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; 255 CLR 46, [44] (French CJ, Hayne, Kiefel, Bell and Keane JJ) ("Zhao"), noting the Police Commissioner omitted "mention of the qualification set down by the High Court that such orders ought only to be made in 'exceptional circumstances'" (our emphasis). The statement of principle in Zhao was referred to in Commissioner of Police v Robbs (No 2) [2022] NSWIRComm 1039 at [145]-[146] as follows: "Open justice is one of the fundamental attributes of a fair trial and a matter that must be weighed in considering the interests of justice. That the administration of justice must take place in open court is a 'fundamental rule of the common law': John Fairfax & Sons Limited v Police Tribunal of NSW (1986) 5 NSWLR 465, [476]-[477] (McHugh JA, Glass JA agreeing). The High Court has said that 'the rationale of the open court principle is that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances': Commissioner of the Australian Federal Police v Zhao (2015) 316 ALR 378, [44] (French CJ, Hayne, Kiefel, Bell and Keane JJ). The Full Bench in Smidmore referred to this as the paramount consideration. We accept the Police Commissioner's submission that the power granted to courts by subs 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) ('Court Suppression Act') is analogous to the power granted to the Commission by s 164A of the IR Act. The relevant condition for the making of an order under subs 8(1)(a) of the Court Suppression Act is 'necessity' in order 'to prevent prejudice to the proper administration of justice' which is similar to subs 164A(3) of the IR Act which gives the Commission power to make an order when it is 'satisfied that it is in the interests of justice'." (emphasis in the original)
The Commission may make a non-disclosure order if it is satisfied that it is necessary to do so in the interests of justice: s 164A(3). In determining whether it is necessary to make such an order in the interests of justice, the principle of open justice is centrally important in the Commission's analysis. However, there is no separate test that there are exceptional circumstances.
Whether or not an order is made under s 164A is a question to be determined with reference to the specific documents in question. Each case turns on its own facts.
Chief Inspector Cruickshank gave the following evidence in support of the s 164A application (at pars 7-24 of the Cruickshank affidavit). "7. I am aware that the Commissioner of Police, as the Respondent in these proceedings, has sought non-disclosure orders over some of the evidence in these proceedings ('the Confidential Material'). 8. Based on my experience as a police officer and Operations Manager of the SMG, I say that, given the content of the Confidential Material, disclosure of any of the Confidential Material would or could: a. Disclose confidential NSWPF methodology; b. Place persons at an increased risk of harm; c. Encourage those involved in criminal activities to adjust their behaviours to avoid Police detection and consequently jeopardise current or future investigations into criminal activity; d. Identify confidential sources of information to law enforcement and expose such sources to a risk of harm; e. Pose a risk to public safety. 9. Generally, the Confidential Material is only accessible by law enforcement personnel with clearance to access the material. Such persons can only access the material when they have a lawful reason to do so that is connected with the performance of their duties. 10. Annexed to my affidavit and marked 'B' is a document which contains four tables which sets out the Confidential Material as it relates to the following four broad subject areas: a. Standard Operating Procedures; b. Training; c. Risk to public safety; d. NSWPF Notebooks/Event reports. In the last column of each table, I set out my views on why I consider each document to be confidential. Where I consider the whole document to be confidential, I have identified this by writing "Whole document" under the column titled 'Confidential part', and where I believe only a portion of the document is confidential, I have extracted the relevant excerpt and highlighted in yellow the portion I consider to be confidential. 11. I have also set out below, more generally, my views on why these kinds of documents are confidential and should not be disclosed. Standard Operating Procedures 12. Standard Operating Procedures ('SOPs') are internal NSWPF documents only accessible to certain NSWPF employees. 13. I consider that the SOPs for individual sites are confidential as they contain access codes, explain security details, such as alarm security systems, patrol routes, security protocols, entries and exits, staffing rotations and posts within the site. The protection of these SOPs is critically important as they include covert and semi-covert NSWPF facilities and other important State locations that house high-profile figures, such as Government and Parliament House. If this information were released and became known to members of the public, it would compromise the security of the site and the safety of those persons within it. These site SOPs are only accessible to NSWPF employees attached to the SMG for this reason. Training 14. Training documents are only accessible to law enforcement personnel. 15. In my view, the Confidential Material that relates to NSWPF training should not be disclosed because they contain police methodology and techniques which, if disseminated to the general public, would disclose the methods specifically used by the NSWPF to contain and negotiate in situations where NSWPF officers are deployed. Should details of the techniques and methods specifically used by the NSWPF become generally known, persons wishing to commit harm or commit serious criminal acts could modify their behaviour in order to thwart the effectiveness of NSWPF training, placing NSWPF officers and the public at a greater risk of harm. 16. I am aware that some information related to the Active Armed Offender ('AAO') training was published in an Industrial Relations Commission decision (Applications for Variations to Crown Employees (Police Officers- 2017) Award and Paramedics and Control Centre Officers (State) Award [2021] NSWIRComm 1040). I have read the parts of that decision which relate to MO and consider that the Confidential Material pertaining to MO has not otherwise been disclosed in this decision. Risk to public safety 17. Some of the Confidential Material contains content which I consider, if released, would pose a risk to public safety, including, but not limited to: a. The types of security systems used at specific locations; b. The timing of patrols and other security measures in place at specific locations and for specific persons; and c. The location of classified NSWPF facilities and what occurs there. 18. The security systems and measures in place at particular locations, as well as the process that is followed to protect high profile persons, should not be disclosed as this information could be used by persons with criminal intent to thwart those security measures and subsequently cause harm at the locations and/or to persons at the locations. 19. The location of classified NSWPF facilities, such as the Counter Terrorism Command and the Potts Hill facility should not be disclosed because of the nature of the confidential and sensitive operational work that takes place at these locations. If these locations were known, it could place the NSWPF employees at these locations at risk of harm, as well as potentially jeopardise current and future NSWPF investigations and operations that occur at these locations. Events/Notebooks 20. The Confidential Material consists of records from the NSWPF Computerised Operational Policing System ('COPS'), specifically Event Reports and NSWPF notebooks. 21. COPS is an electronic database that was adopted by the NSWPF, as a record-keeping system to capture, record and store operational information and intelligence on an organisation-wide basis. COPS and NSWPF notebooks provide a means by which NSWPF officers record the details of persons, organisations, locations, objects, property and vehicles that are of interest to NSWPF. Information on the COPS database is used to identify, assess and evaluate criminal activities, conduct criminal investigations and to identify persons of interest. 22. The Event Reports and notebooks that form part of the Confidential Material contain a number of sensitive personal details of members of the public (e.g. CNI numbers and contact details) as well as information that has been reported by members of the public to NSWPF officers. 23. Law enforcement agencies, such as the NSWPF, rely heavily on assistance from persons who provide confidential sources of information. Generally, persons who provide intelligence to NSWPF do so on the basis that the information provided will remain confidential to the NSWPF. If information provided to NSWPF on that basis is disclosed, even if a source of criminal intelligence is not identified, this carries the risk of deterring further disclosure of criminal intelligence by the source or by members of the public more generally. 24. Finally, the disclosure of Event Reports and notebooks may reveal confidential NSWPF methodology, or the extent of NSWPF knowledge or understanding of matters that may be the subject of present or future investigations. Disclosure of this information may allow those involved in illegal activities to change their modus operandi or otherwise take action to avoid detection by police. Disclosure of Event Reports or notebooks may also allow persons the subject of the reports/entries to draw inferences about which criminal activities may not be known to the NSWPF at that time."
The PSA submitted that Chief Inspector Cruickshank's evidence ought to be regarded with caution and limited weight given to it in circumstances where: 1. it is not evident that Chief Inspector Cruickshank has any expertise or training relating to general police operational risk management which enables him to give evidence that as a result of the non-disclosure orders sought '…that particular consequences will flow, that those consequences are unacceptable'; and 2. Chief Inspector Cruickshank is not independent, being currently employed by the New South Wales Police Force.
We reject these submissions for the following reasons.
We consider Chief Inspector Cruickshank to be suitably qualified to give the evidence he has in support of the s 164A application. Chief Inspector Cruickshank has been a Police Officer for more than 30 years and has been the Operations Manager of the SMG for more than 4 years. Chief Inspector Cruickshank was not required for cross-examination and there are no obvious reasons why he would give anything other than truthful evidence. The Commission is not bound to act in a formal manner, is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just: s 163 of the Act. The Commission often accepts evidence in the nature of opinion evidence in the context of applications for orders pursuant to s 164A of the Act.
Most of the risks identified by Chief Inspector Cruickshank are obvious and real and the Commission does not require a person with expertise in risk assessments to find that the interest of justice require the making of a s 164A order. For example, it follows as a matter of logic that the non-disclosure of confidential operational policing methodology, or any other information that may allow the practices and process of the NSW Police Force to be understood and countered will lead to undesirable consequences, namely a risk that information will be used for nefarious purposes. We consider the risks identified by Chief Inspector Cruikshank to be real and not fanciful.
The Police Commissioner sought non-disclosure orders in respect of materials where the PSA did not oppose the orders made. The consent or non-opposition of a party to the making of non-disclosure orders does not relieve the Commission from the need to carefully consider whether the making of the orders in respect of those materials in necessary in the interests of justice. Having carefully considered the evidence of Chief Inspector Cruickshank and the submissions of the Police Commissioner with respect to the unopposed materials, we have decided that the orders should be made pursuant to s 164A covering them.
We address the particular materials where the PSA opposed the application of the s 164A orders below.

[36]

SOPs

The Police Commissioner sought s 164A orders in respect of the SOPs relating to each of the locations where Special Constables are posted. As set out above, Chief Inspector Cruickshank gave evidence at pars 12-13 of his affidavit in support of a non-disclosure order being made in respect of the SOPs.
The PSA submitted that non-disclosure orders should not be made in respect of the SOPs because: 1. each of these were produced to the PSA under subpoena, with confidential information redacted before access was granted, by consent. In the premises, the Police Commissioner has already exhausted her opportunity to claim confidentiality over the whole of these documents; 2. the unredacted parts of the documents demonstrate general duties and responsibilities; and 3. no evidence has been presented by the Police Commissioner of the particular consequences of the disclosure of the generalised information in each separate document.
The Police Commissioner submitted that the redactions of the documents produced under summons (such as passcodes to access secure areas of particular buildings) is not relevant to the s 164A application. She argued that confidential information relevant to the proceedings (i.e., the actual content of the SOPS) needed to be revealed to the PSA and the Commission for the purposes of the proper determination of the application. Further, the Police Commissioner submitted that the unredacted parts of the SOPs do more than demonstrate "general duties and responsibilities". She argued that the SOPs detail security staffing arrangements, alarms, responses to suspicious packages, vetting requirements and detail the security provided at each site. The Police Commissioner argued that a person, armed with such knowledge and a nefarious intent, would be far better placed to undermine security measures used, compared to a person who does not have a copy of the SOPs.
It was put that the evidence of Chief Inspector Cruickshank though general with respect to its nature and reasons for needing a non-disclosure order, is a sufficient basis upon which the Commission would make the orders sought. The Police Commissioner argued that it would otherwise be difficult to see how she could lead evidence of particular consequences of disclosure of every single SOP without engaging in lengthy hypothesising.
We do not accept the submissions of the PSA that because the Police Commissioner did not seek further redactions and/or consented to the documents being accessed for the purposes of the proceedings, the s164A application must fail in respect of the SOPs. The basis upon which the production of documents by a summons might be resisted is different and unrelated to the reasons it might be appropriate to make orders pursuant to s 164A. We note that documents produced through the Commission's coercive processes are not in the "public domain". When accessing such documents, the recipient is subject to the so-called implied undertaking to use the documents, or information contained in them, only for purposes directly connected with the conduct of the litigation: Harman v Secretary of State for Home Department [1983] 1 AC 280. As was stated in Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 at [96]: "Where one party to litigation is compelled … to disclose documents or information, the party obtaining the disclosure cannot, without leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence."
We accept the evidence of Chief Inspector Cruickshank with respect to the confidential nature of the SOPs and that, were the SOPs to be released to the public, it would compromise the security of the sites occupied by the Special Constables and the safety of those persons within them. We agree that it is impracticable to require more detailed evidence in respect of the s 164A application, traversing a range of hypotheticals on the likelihood and consequences of the s 164A Orders not being made. We are satisfied that it is necessary in the interests of justice to make the s 164A orders in respect of the SOPs.

[41]

Orders

The Full Bench orders that: 1. there be a 2% increase to the salaries and salary-related allowances in the Current Award, with such increase to take effect from the first full pay period on or after 1 July 2023.
The Full Bench directs that: 1. the parties confer with respect to the addition of an allowance for Overwatch duties in accordance with [82] above; 2. the parties confer with respect to amending the Weekday and Weekend Allowances in accordance with [38] above; 3. the parties confer with respect to whether the making of the Proposed Award would be consistent with the objective of the Act, to prevent and eliminate discrimination in the workplace and in particular to ensure equal remuneration for men and women doing work of equal or comparable value, taking into account the matter raised at [38] in respect of the differential treatment of part-time and casual employees regarding the Weekday and Weekend Allowances; 4. the PSA prepare short minutes of order to give effect to the Commission's Order at [300] as discussed at [256]-[257]; 5. the PSA confer with the Police Commissioner as to the content of the proposed short minutes of order; 6. no later than 4 pm on Friday 21 June 2024, the PSA file with the Registry of the Commission the short minutes of order they propose, together with a document identifying whether they are agreed or opposed by the Police Commissioner; and 7. the matter be listed for report-back before Commissioner Webster on delegation from the Full Bench with respect to the overwatch allowance, Weekday and Weekend Allowances, and part-time and casual employee provisions at 10 am on Friday 2 August 2024. 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: 07 June 2024

Commissioner of Police v R

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