Crown Employees (Police Officers - 2009) Award [2011] NSWIRComm 43 - NSWIRComm 2010 case summary

Industrial Relations Commission (NSW)|2010-03-19|Before: Boland P, Walton VP, Grayson DP

DECISION 1These proceedings arise from the agreement reached between the Police Association of New South Wales ("the Police Association") and the Commissioner of Police ("the Commissioner") ("the parties") in settlement of the 2010 salaries round for police officers. 2That settlement resulted in an increase of 4 per cent per annum over a two-year period from 1 July 2009 for police officers and incorporated the prospect of further claims in some limited respects. The settlement was reflected in a new award known as the Crown Employees (Police Officers - 2009) Award ('the award'). The award provided for leave reserved in accordance with the agreement, the partial activation of which formed the basis of these proceedings. 3The leave reserved clause is found in cl 89 of the award and is in the following terms: 89.1 Leave is reserved for the Police Association of NSW to make application for variation of this Award to 89.1.1. incorporate into the award, maternity leave provisions consistent with a NSW State endorsed flow-on arising out of a future federal minimum standard; and 89.1.2. to pursue improved remuneration having regard to attraction and retention for (a) officers attached to the Tactical Operations Unit ("TOU"); (b) officers attached to the Police Prosecutors' Branch ("PPC"). 89.2 Leave is reserved for the NSW Police Force to pursue a review and modernisation of rural and remote attraction and retention arrangements. 4These proceedings concern an application to vary the award brought by the Police Association in reliance upon the provisions of cl 89.1.2 above.

Historical Attraction and Retention Problems 15As to the first issue, Mr Hatcher, in his final oral submissions, outlined four propositions which were "fundamental" to the Police Association's case. First, there had historically been, and still was at the time the evidence closed, a shortage of officers in each of the two units: the police prosecutors and the TOU operatives, with critical implications for the public interest. Secondly, the shortage was a function of attraction and retention difficulties which existed for a number of years. The third proposition was that the attraction and retention difficulties led to a shortage of officers in police prosecutions and TOU which, in turn, caused significant changes in work value. Fourthly, the Police Association's proposed pay structures were appropriate both as a response to the changes in work value that have been identified and as a remedy to the attraction and retention difficulties. 16It was from that introductory submission, and subsequent questioning from the Full Bench, it emerged for the first time in the proceedings that the Police Association contended that the conditions for leave reserved, and indeed, the Police Association's agreement with the Commissioner could be satisfied by proof that there had existed, historically, a shortage of police officers in the subject areas by reason of either attraction or retention problems, even though those shortages and antecedent causes no longer existed or might not be expected to continue at the time the Police Association prosecuted its claims based upon that agreement. In fact, the Police Association contended that the leave reserved clause should be construed by reference to the circumstances presumed to be known to the parties at the time they entered into the clause. 17The Commissioner submitted that the Police Association's reliance on past attraction and retention issues in the Police Force represented a last minute reformulation of its case and was inconsistent with the interlocutory decision of Boland J. 18Mr R C Kenzie QC, with whom Mr T Dixon of counsel appeared for the Commissioner, submitted that the Commission should not countenance the introduction of a permanent change to the salary structure as contemplated by the Police Association's claims (which were governed by attraction and retention considerations) unless the Commission was convinced that there were current shortages or future attraction and retention issues. Superintendent Trichter's evidence demonstrated that there were no existing or future attraction and retention issues for police prosecutors, but the Police Association submitted that it might still succeed in its claim, because the leave reserved clause is broad enough to contemplate past attraction and retention considerations. 19The Commissioner submitted that this approach should be rejected for a number of reasons. First, it would involve a significant departure from the case advanced by the Police Association until its final submissions. Secondly, Mr Kenzie contended it could not be seriously submitted, and would never be found, that the leave reserved clause, insofar as it identified attraction and retention, was referring to past attraction and retention, which did not need to be addressed now, and which only had "historical aspects". 20Thirdly, the Police Association's altered position was inconsistent with the President's interlocutory decision of 16 November 2009. 21This issue can be disposed of shortly. Broadly, we accept Mr Kenzie's submissions on this issue. We do not consider that the leave reserved clause contemplated anything other than the making of claims based upon existing or future potential shortages in the PPC and TOU which could be demonstrated as having a current and ongoing effect on police officers working in those areas such as would warrant a permanent alteration (that is, an increase) in salaries or changes in salary structures. The agreement between the Police Association and the Commissioner should be properly construed in this manner. Further, we consider that the words 'attraction' and 'retention' in the leave reserved clause must be construed within an industrial context, that is, as the expression appears in the award. In that sense, we consider the words are intended to convey a meaning that an application may be sustained upon the basis of a relevant current shortage of police officers in the subject areas identified in the clause. The very nature of the clause is such that it would permit a variation to the award, in appropriate circumstances, where the trigger of a shortage of labour was extant at the time of the hearing or determination of an application made pursuant to the clause.

The Special Case Issue 22The Police Association, in its closing written submissions, stated: In this case the necessary 'special attributes' can be identified as arising from the terms of the 'leave reserved' provision itself as understood in the light of the interlocutory rulings. In that "leave reserved" provision the parties have agreed to something which the Commission has already identified as "unusual in nature" (i.e. "out of the ordinary"), namely that any claim for increased remuneration for TOU operatives and police prosecutors may only be brought having regard to attraction and retention. In this way, the parties have themselves established the "special attribute" which any claim must possess in order to succeed. Therefore if the Association's case demonstrates the necessary connection to attraction and retention such as to satisfy what may be described as the condition precedent of the "leave reserved" provision, there is no further requirement for some other special feature of the case to be established; the claim then simply falls to be considered on its merits having regard to whether it would satisfy the requirement in s 10 of the Industrial Relations Act 1996 ("the Act") that it constitute "fair and reasonable conditions of employment for employees". 23It is strictly unnecessary to rule upon this issue, as we do not consider the Police Association has made out an attraction and retention case consistent with requirements of the leave reserved provision. We would note, however, that we have some doubts about the Police Association's submission, in this respect, as it seems to bring with it that the establishment of the conditions of the leave reserved clause might in some way, in and of itself, satisfy the Special Case principle.

THE CLAIM 24This is the context in which we have assessed the Police Association claims. 25The Police Association advanced discrete and different claims in relation to attraction and retention and work value for police prosecutors and TOU operatives. We note, in this respect, the police prosecutors and TOU operatives are currently paid in accordance with the provisions of the award, and their remuneration is fixed by salary rates for their rank and grade, and any other general allowances that are applicable to them including a Special Duties Allowance ("SDA").

Police Prosecutors 26Under the award, the remuneration of police prosecutors consisted (at the time of final submissions) of three key elements: a) The loaded salary rate (that is, base salary plus the 11.5 per cent all incidents allowance) applicable to the officer's rank and grade. b) A plain clothes allowance of $1,208 per annum. c) The Grade 4 SDA in accordance with the officer's length of service as a permanently appointed prosecutor. The current allowances are: i) Six months following permanent appointment: $4,239 per annum, ii) 3 years after permanent appointment: $5, 237 per annum, iii) 5 years after permanent appointment: $6, 482 per annum. 27The Police Association's claim with respect to police prosecutors would abolish the existing SDA for police prosecutors and introduce, instead, a new remuneration structure which involved two elements:

A salary structure which provides for higher entry-level salaries and accelerated progression (with the quantum of currently applicable allowances including the SDA being incorporated into the salary); and
Attraction and retention allowances of $7,500 and $10,000 to apply after seven years and 10 years' service respectively. 28As the matter progressed, the claim for police prosecutors was refined so as to have the following particular features: (a) The claim applies to trained prosecutors in the Police Prosecutions Command ("PPC") - that is, to persons who have successfully completed the Prosecutors Education Program ("PEP"), or the equivalent training program which preceded it. It is not intended to apply to anyone else employed in the PPC. (b) The claim will replace the current Special Duties Allowance as it currently applies to police prosecutors. It is not intended to affect the payment of Special Duties Allowance to anyone employed in the PPC who is not a trained prosecutor and who is currently in receipt of such allowance. (c) The proposed new remuneration structure has two elements. The first is a new pay scale for prosecutors which involves an accelerated progression through the pay grades as compared to the current structure. The new pay scale involves pay increments based upon each year of service at the rank of Constable, Sergeant and Senior Sergeant. The bottom pay rate (Police Prosecutor 1st year) is calculated at the current rate for a Constable Level 4, plus the highest (5 year) SDA rate and the plain clothes allowance. The accelerated progression consists of three elements: the minimum commencement rate based on Constable Level 4; the payment of what is currently the highest SDA rate from year one; and the omission of some of the current pay steps (Senior Constable Level 2 Step 2; Senior Constable Level 3 Steps 2 and 3, Senior Constable level 4 Step 2, Senior Constable Level 5 Step 2, Sergeant 4 th year, Sergeant 6 th year, Sergeant 8 th year, and Senior Sergeant 2 nd year). In the case of the 5-year prosecutor ranked and graded at Senior Constable Level 3 Step 1 referred to earlier (i.e. a prosecutor who commenced as such at Constable Level 4), the new pay scale would make virtually no difference in pay upon introduction, but would allow that officer to progress to the top rate for a Senior Constable in a further 4 years rather than the current minimum 9 years. It largely reproduces a new structure which was introduced for Detectives (in lieu of their pre-existing SDA payments) in 2005 as a response to an attraction and retention problem identified with respect to that group. (d) The second element of the proposed remuneration structure is retention payments of $7,500 and $10,000 to apply after 7 years and 10 years service respectively. These are intended to serve as incentives to officers to remain as prosecutors for periods in which they will reach the optimum level of skill and experience. It is a precondition of these payments that the prosecutor has successfully completed the Senior Prosecutors Education Program - an advanced course for more experienced prosecutors. 29The claim for police prosecutors was advanced in the written submissions of the Police Association, in summary, on the following grounds: (a) The remuneration of police prosecutors, which has never been the subject of a proper work value assessment, is intrinsically too low, since it does not properly reflect the value of the work performed by prosecutors. This has been a cause of the attraction problem which exists, since general duties police officers transferring to the PPC face lower remuneration (due to the loss of shift penalties), less flexible work hours, a heavier workload, and far more onerous work responsibilities. It has also been the cause of a retention problem, since t he far higher remuneration available in private legal practice for those prosecutors who have obtained legal qualifications, and the superior conditions, better remuneration, less demanding duties and greater promotional opportunities available in general duties police work, has led to a significant annual rates of departure of prosecutors. Thus, the turnover of prosecutors is high. (b) As earlier stated, the long-term shortage of police officers and the consequences it has had in terms of the workload of prosecutors has aggravated the attraction and retention problem, since it makes role of prosecutor even less attractive both to those who may wish to become prosecutors and those already in the role compared to the alternatives. (c) The intensification of the work of prosecutors, and the concomitant changes in the nature of their work and their skills and responsibilities, which the shortage of prosecutors has caused, has not been recognised in their remuneration structure and has increased the extent to which the remuneration of prosecutors does not properly reflect the value of their work. Further, it has not been recognised that prosecutors have had to accommodate this shortage while at the same time dealing with significant changes to their work and its volume caused by outside developments, such as changes to legislation relevant to their matters, an expansion of the court system, and greater referrals of matters back from the DPP. (d) As has long been recognised within the management of the PPC itself, as well as amongst the highest levels of the NSW Police Force, an enhancement of the remuneration of prosecutors is the most important step to achieving a long term solution to the problem of the shortage of police prosecutors. A similar step was taken some years ago with respect to Detectives, which successfully resolved an attraction and retention problem there. (e) The work load now imposed on police prosecutors has become unfair and unconscionable, requiring rectification action. Additional prosecutors are required, but this can only successfully be achieved if the remuneration of prosecutors is enhanced, as the PPC has recognised. (f) The resolution of the prosecutor shortage through increased remuneration is also required in the public interest. The shortage has led to detrimental consequences for the public interest in the proper administration of justice, most notably illustrated by significant increases in the amount of costs awarded annually by the courts with respect to failed prosecutions.

TOU Operatives 30TOU operatives' award remuneration (at the date of final submissions) consisted of the following elements: a) The loaded salary rate applicable to the officer's rank and grade. b) The Grade 3 SDA in accordance with the officer's length of service as a permanently appointed TOU operative. The current allowances are: i) Six months following permanent appointment: $2,497 per annum, ii) 3 years after permanent appointment: $2,994 per annum, iii) 5 years after permanent appointment: $3,500 per annum. c) Shift allowances in respect of staffing the TOU roster (which runs 24 hours per day, seven days per week). These allowances are 15 per cent for the A shift, 17.5 per cent the B shift and 10 per cent for the C shift. d) Allowances of $16.52 for being on-call between two ordinary shifts or for less than 24 hours, and $24.75 for being on-call for a 24-hour period. e) Overtime for completing attendance at incidents which extend beyond the end of a shift or where called in for attendance at incidents. 31The claim for TOU operatives essentially involved a new scheme of allowances to replace the current SDA. The new scheme would:

Establish increased and accelerated allowances for TOU operatives who have completed their training course, payable over the first three years of their service.
Reward the acquisition of additional valuable skills (marksman, breacher and PTG operator) with additional allowances.
Provide for an allowance for those TOU operatives who have the responsibility of training those seeking to enter the TOU. 32The TOU operatives' claim was justified by the Police Association on the following grounds: (a) The work of TOU officers, which has never been the subject of a work value assessment, is intrinsically under-remunerated. The maximum special duties allowance that a TOU officer can achieve (upon 5 years service) is currently only $3,236 per annum, which clearly does not adequately reflect the work value of TOU officers as compared to general duties officers. TOU officers also have very limited promotional opportunities within the unit. This must be regarded as the starting point of the attraction and retention problem - TOU rates are simply uncompetitive for this reason. (b) The post-September 11 labour market has expanded the job opportunities for TOU operatives, and increased the market value of their skills. Further skills acquired by TOU operatives over this period, not recognised in their remuneration, have simply added a further dimension to the problem. (c) The demanding characteristics of TOU work means that there is little scope to expand recruitment to the degree necessary to keep pace with losses and fill the available positions, given the far less demanding nature and greater promotional opportunities of general duties work. This points to an internal problem with police pay scale relativities. (d) The attraction and retention problem has increased the work demands and responsibilities upon those who remain in the TOU - and thus made the work even less attractive compared to the available alternatives. (e) Public interest considerations would support the granting of the claim. This is for two reasons. Firstly, the need to keep the TOU at full strength and to retain experienced tactical and counter-terrorist operatives is paramount. Secondly, the cost and diversion of resources required to train large numbers of new operatives each year to replace departing operatives is significant, to the extent that the granting of the claim is expected to be cost neutral within a relatively short period of time. (f) The Police Association submitted that there are significant attraction and retention problems in the TOU, which has resulted in a current shortage of fully trained officers. First, the loss of officers to other high paying, employment opportunities outside the Police Force or to promotional opportunities within the Police Force; and secondly, an incapacity to recruit sufficient numbers of new officers to replace those who have left the unit for other positions or have been medically discharged.

EVIDENCE IN THE PROCEEDINGS 33There were a large number of witnesses called for both the Police Association and the Commissioner, in what were complex proceedings. Much of the evidence was given in closed session or under confidentiality restrictions. We have decided not to attempt any summary of that evidence, as it is simply not feasible to disentangle confidential from non-confidential evidence for the purpose of publishing a decision. It is also strictly unnecessary to do so given the basis upon which this matter has been ultimately resolved. A list of those persons who gave evidence (whether called to give evidence or not) and their positions appears in Annexure A to this decision.

Nature of the Work 34Police prosecutors work within the Police Prosecutions Command ('the PPC'), and fall under the general command of the Deputy Commissioner, Specialist Operations. The PPC is responsible for prosecutions in the Local Court, Children's Court, Drug Court and Coroner's Court. In the Local Court, the PPC handles matters for the NSW Police Force, and approximately 130 different government agencies. The other parts of the PPC provide support and advice services to operational police such as the Operational Legal Advice Section, the State Crime Command and the Special Applications Section. These sections have qualified prosecutors and solicitors or both. 35The structure of the PPC was derived from the former NSW Police Force Legal Services Command, which consisted of the Criminal Law Division and the Civil Law Division. The current structure of the PPC commenced operation on 4 February 2008. It is broken down into six areas: Prosecution Processes, Prosecution Support, Operational Legal Advice, Human Resources, Prosecutor Operations and Executive Legal Support. 36The PPC is overseen by the Commander of Police Prosecutions, Chief Superintendent Anthony Trichter. Immediately underneath the Commander is the Director of Prosecuting Operations, Superintendent Jeff Philippi. The Prosecution Operations is split into four regions managed by four Managers holding the rank of Inspector. Each region is then divided into 'clusters', which are supervised by an Area Prosecutor Coordinator ('APC') who is of Senior Sergeant rank. The central responsibility of an APC is to manage and oversee a cluster of prosecutor officers but they are also often required to prosecute matters in court. 37Each court cluster is managed on a day to day basis by a Head of Court ('HOC'), who holds the rank of Sergeant. In addition to prosecuting matters in Court, the HOC has supervisory responsibilities and handles the day to day operations of their particular prosecutor office. The prosecutors themselves in each prosecutor's office are generally of the rank of Sergeant or below, and the majority of them are Constables or Senior Constables. 38Police prosecutors are not required to hold a legal qualification, although they are encouraged to obtain such qualifications, and many of them are admitted to practice in the Supreme Court of New South Wales. The qualification for appointment as a police prosecutor is completion of the Prosecutor Education Program ("PEP"), which lasts for approximately 12 months.

History of Shortage Issue for Police Prosecutors 39The genesis of the prosecutors' claim lies in a series of reports, reviews and inquires as to the workload in, or the operational requirements of, the PPC or its predecessors. This is briefly set out below: a) Issues as to attraction and retention for police prosecutors were first identified in a 1998 report on the workload and resources of the NSW Police Prosecutors Services by Mr Gary Byron. The report identified a significant number of vacancies in authorised positions and went on to identify the loss of prosecutors and their experience as a significant problem. b) In July 2002, a Review of the NSW Police Force's Court and Legal Services was prepared by the Hon Jeff Shaw QC and Superintendent Ian Tomkins ('the 2002 Review'). It reported that the Court Unit (now the Prosecutor's Unit) was struggling to fill its commitment to the Local Court system with its current staffing arrangements, and identified part of that problem as being a number of vacant positions (as well as the number of prosecutors on long-term sick leave). c) A report prepared by Inspector Tony Wallace on 20 October 2005 recommended the allocation of greater resources to metropolitan court prosecutors. In December 2007, the York Review of Resourcing of Specialist Positions in the NSW Police Force was issued. That report identified, in particular, a "shortage of qualified prosecutors" in the metropolitan courts. d) In August 2006, a Recruitment, Retention and Deployment ('RRD') Steering Committee was formed for prosecutors, initiated by Assistant Commissioner Shearer. The RRD presented a staffing submission to the Executive Director of Corporate Services in February 2007. A number of recommendations for industrial reform were advanced, particularly as to the pay scale for prosecutors. e) A Ministerial Briefing dated 25 May 2007, drafted by Superintendent Trichter, indicated that a prosecutor salary structure had been the subject of recent discussions between Legal Services and the Director of Human Resources. Superintendent Trichter's briefing note then stated that there were two strategies that needed to be successfully implemented in order to address "the critical shortage of police prosecutors". The first was the introduction of a new position, to be known as 'Court List Officer', and the second strategy involved resolving the staffing crisis in the long-term by the introduction of a specialist pay scale for police prosecutors, similar to the present Detectives' pay scale. f) A financial report dated 17 July 2007 was prepared by Chris Klazidis, Acting Senior Financial Analyst, which analysed the cost impact of "a revised Prosecutor Salary Structure mirroring the current Detective Salary structure". g) In June 2007, a remuneration proposal was being actively advanced by Superintendent Trichter for police prosecutors. However, shortly after, the progress with the proposed new pay structure faltered. It was reported to prosecutor representatives that the proposal had gone to the Premier's Department. Meetings between representatives of the Association's Prosecutors Branch and Assistant Commissioner Shearer in October 2007 did not substantially advance the matter. Assistant Commissioner Shearer said: "I'm fully supportive of the pay scale and I believe in the long-term it will solve our staffing issues", but indicated that she did not have authorisation from the Ministry to negotiate it. By this time, the Prosecutors Branch had adopted Superintendent Trichter's proposed prosecutors pay scale as its own claim. h) On 19 November 2007, a meeting of the newly formed Police Prosecutors Attraction and Retention Committee occurred. It was noted "Attraction and Retention Payments are to be for a specified period of time, not exceeding three years and must be reviewed at least annually". The minutes reflected that "It was felt by the Association representatives that the adoption of a Prosecutors' specific payment scale, similar to Detectives, would assist in attracting and retaining officers within Police Prosecutions". i) On 25 June 2008, Acting Commissioner Gallagher informed Mr Reitano of Police Prosecutions that the Branch's claim for the Prosecutors Pay Scale would be included in the next log of claims. Claims for immediate wage increases were rejected because of a no extra claims clause in the Award. j) On 7 July 2008, members of the Prosecutors Branch commenced industrial action by way of what can generally be characterised as a 'work to rule' campaign. On 10 July 2008, Assistant Commissioner Gallagher identified the NSW Government Wages Policy as a reason why the prosecutors' pay scale could not be progressed. k) On 24 July 2008, the NSW Police Force notified a dispute to the Industrial Relations Commission, and the matter came before Schmidt J on 25 July 2008. Her Honour recommended that the industrial action be lifted and that the parties meet to discuss the dispute as soon as possible. The recommendation was complied with. However, subsequent discussions, including a meeting on 11 August 2008 between representatives of the Association and representatives of the Treasury, the Public Sector Workforce Office and the NSW Police Force, did not resolve the matter. l) Nevertheless, the NSW Police Force did agree to establish a number of new Leading Senior Constable positions in the PPC, so as to provide an opportunity for some officers to achieve a salary enhancement by way of promotion. Nonetheless, the issue of the shortage of prosecutors remained contentious. m) The Commissioner of Police entirely rejected the Association's claim for police prosecutors during the 2009 salaries negotiations, and only conceded the leave reserved provision pursuant to which the current proceedings are brought. The Commissioner denied the existence of any attraction and retention problem.

Attraction and Retention: Submissions for the Police Association 40The Police Association made, in summary, the following submissions: a). The evidence demonstrated that there had been a significant attraction and retention problem with respect to prosecutors that had extended over the last decade and was continuing. There have been three principal features of this problem: (i) A consistently high rate of departures of prosecutors, especially experienced prosecutors, from the PPC; (ii) an inability to attract sufficient new recruits from within the Police Force to enable the PPC to replace departures and reach its authorised strength; and (iii) A shortage of prosecutors 'on the ground'. That situation has now forced the PPC, in effect, to recruit outside the Police Force by way of the Accelerated Prosecutor Recruitment Program ('APRP'). b). The PPC has, at all times, been, and remains, well below its authorised strength. Although the degree to which the attraction and retention problem has existed has 'waxed and waned' over time, the underlying structural distortions in pay which underlie ensure that the problem persists. c). The PPC's incapacity to fill its prosecutors' positions was identified in the most recently available statistics. The position at January 2010 was that there were 219 authorised prosecutor positions which, with minor variations, had been at that level since October 2008. However, there are only 196 prosecutors in those positions, and (accounting for the fact that a number of those prosecutors work part-time), 186 full-time equivalent ('FTE') prosecutors, leaving 33 FTE positions vacant. In addition, there are 36 over-strength not to be de-activated ("OSND") prosecutor positions, of which 19 are filled by prosecutors (or Court List Practitioners). This makes a total of 255 positions which can be filled by prosecutors, and a shortage of 40 FTE prosecutors (meaning a vacancy rate of about 16 per cent). d). This shortfall has not changed significantly in recent years, despite intensive efforts by the NSW Police Force to use "non-financial" methods to increase the recruitment of new prosecutors: in July 2008, Superintendent Trichter reported a total deficit of 45 prosecutors. In 2001, 22 per cent of prosecutor positions were vacant; in 2008, the figure was 21 per cent. e). There was clear evidence of a significant problem in terms of the rate of turnover of prosecutors, which is caused by the failure to retain prosecutors and which thereby, feeds the shortage problem. The figures for the period from 2002 to 2006 show that there were 143 new prosecutors over this period, but 179 were lost due to separations from the Police Force or transfers to other areas of the Police Force. This represents attrition rates of between 15 and 19 per cent per annum (based on authorised strength; it would be higher based on actual strength). The average number of prosecutors lost each year in the period 2001 to 2008 was 28. This turnover has led to a position where the large majority of prosecutors of the rank of constable have less than five years' experience as prosecutors. f). Trainee prosecutors were not included in the above figures, because (unlike the TOU), trainees in the PPC do not hold OSND positions. Notwithstanding this, the evidence in any event shows that the recent position in the number of trainees had deteriorated. In October 2008, the number of trainees was 30, but in the following month it climbed to 51, and remained at 45 or above through to January 2010. Superintendent Trichter said that there were 61 trainees in December 2009. However, the latest figures showed that this has dropped to 34 by August 2010. This followed the cancellation of the first training class due to commence in 2010 due to insufficient numbers. It is likely that in the near future there will be further significant reductions in the number of trainees. Superintendent Trichter's evidence was that 19 of the existing trainees would be appointed to authorised positions in September 2010, and that the next class scheduled to commence in October 2010 would have eight definite starters with a possibility of up to eight more. That would mean by the time that class commenced, the number of trainees would be well under 30 and perhaps as low as 23. That is the lowest number ever in any month in the period from September 2008 (when the figures in the evidence commence). The declining trainee numbers point to an ongoing problem in attracting new recruits to the PPC. g). The gravamen of Superintendent Trichter's evidence was that there had been a long-term attraction and retention problem in the PPC, but that he anticipated (largely because of the APRP) that the PPC would, at least on a 'headcount basis', shortly be available to fill its 238 prosecutor positions. That would require a net improvement in the 'headcount' of 22, in circumstances where the net improvement on a 'headcount basis' had only been 11 from October 2008 to August 2010, notwithstanding the various initiatives to improve the situation which Superintendent Trichter had described. h). Superintendent Trichter's analysis proceeded on the following propositions: (i) There were 19 trainees (6 from PEP 29 and 13 from PEP 30) who would be appointed to prosecutor positions by the end of September 2010. (ii) Additional prosecutors would flow into the PPC in 2011 as a result of the APRP, with three commencing training in October 2010, and a further 10 due to start the training course in early 2011. i). However, the time lags involved in training APRP recruits mean that (apart from one who is part of the cohort of 19 to be given positions by September) the next three will not become 'made' prosecutors until approximately October to December 2011, and the next 10 not until early 2012. Therefore, the APRP will not make any impact on numbers in the next 12 months. There are currently 15 trainee prosecutors (i.e. 34 less the 19 to be given positions by September) in PEP 32 who have the prospect of becoming 'made' prosecutors in the next 12 months. Applying the usual attrition rate of about 25 per cent, it can be expected that 11 to12 of these will fill prosecutor positions in the next 12 months. Therefore, the best projection is that there will be 30 to 31 new prosecutors appointed in the next 12 months. j). On the other side of the equation, the departure of at least three prosecutors was imminent at the time Superintendent Trichter gave his evidence in August, and will already have occurred. In addition, it can be assumed that further prosecutors will leave the PPC in the next 12 months. The historical average annual loss rate of prosecutors is 28. If this is maintained over the next 12 months, then the total loss from the August 2010 'headcount' figure this time next year will be about 31 (28 plus three). Thus, the expected new recruits will not effect any net change, or any discernible net change, on the current number of vacancies. k). Furthermore, the long-term effect of the APRP on attraction and recruitment patterns in the PPC is a challenging issue. That is primarily because (and as Superintendent Trichter accepted) APRP recruits will be persons whose career focus is in the legal profession rather than policing, and who, as a result, can be expected to have a significantly shorter amount of service in the PPC (compared to traditional police prosecutors) before they move on to other things. Superintendent Trichter acknowledged in his own Staff Submission in 2007 that "a high turnover of staff is expected". This may mean that although the APRP may have a long-term positive effect on the recruitment rate, it may also serve to worsen the retention rate. l). Despite Superintendent Trichter's consideration that the position concerning the numbers of prosecutors would continue to improve, he remained firm in his support of the claim in the attraction and retention context (at least insofar as the prosecutors' pay scale element of the claim was concerned). His evidence was that: (i) As at December 2009 and "today" he was a supporter of the prosecutors' pay scale. (ii) As at December 2009 and "to this day" he still supported the claim in the context or framework of an attraction and retention problem. (iii) He had assured his staff that he was wishing success to the Association's claim for prosecutors, which he linked with conditions necessary for sustaining police prosecutors long into the future and ensuring sufficient police prosecutors' numbers in the long-term, and this "absolutely" remained the case now. (iv) In the light of the history over the past few years of attraction and retention problems, it was necessary to have a structure in place to ensure there were sufficient police prosecutors in place for the long-term. (v) While it was not the "panacea" or "the only option", the prosecutors' pay scale would go some way in improving attraction and retention for Police Prosecutors. (vi) An enhanced remuneration structure for Police Prosecutors remains an "important part" of the strategies that need to be implemented to resolve the attraction and retention problem over the long-term, and Superintendent Trichter wanted the Commission to implement it for that reason. (vii) Superintendent Trichter had "no doubt at all" that the grant of the prosecutors' pay scale would "improve the command" for a number of reasons:

It would serve to attract officers in mainstream policing who would currently be disinclined to pursue a career as a Police Prosecutor because of the significant drop in pay they would suffer in first coming over to the PPC.
The prosecutors' pay scale would go some way to address the position of high quality officers in the PPC who have left the PPC or may leave in the future to earn more money either elsewhere in the Police Force or outside the Police Force.
The grant of the prosecutors' pay scale would be perceived by officer in the PPC as final recognition of the value of the work they do and the regard in which they are held within the Police Force, and have a significant positive morale effect.
It was a concern that there may be a significant negative effect on morale if the outcome of these proceedings was that prosecutors received no additional remuneration within the award. m). Assistant Commissioner Jenkins expressed the opinion, in his statement of evidence, that there was no attraction and retention issue in the PPC that was even of concern let alone one which would justify the grant of increased remuneration for officers within those commands. He confirmed that it followed from his statement and its annexures his view was that not only was there not any attraction and retention problem in the PPC, there never had been. This obviously put him completely at odds with the other witnesses, not least Superintendent Trichter. His opinion, in this respect, was said to be the corporate position of the Police Force as a whole, based on the delegation of human resources matters to him by the Commissioner. However, he also said that he had instructions from the Commissioner about the matter. n). The corporate view of the Police Force was premised upon the accuracy of the analysis attached to Assistant Commissioner Jenkins' statement. However, the analysis, upon which Assistant Commissioner Jenkins based his view, was clearly flawed and misleading. This can most obviously be seen in the figures it gives for "% of Authorised Positions Occupied", which has a figure in excess of 100 per cent for every year from 2001 to 2009 - that was, indicating that the number of officers in the command had always exceeded the number of available positions. On these figures it was not surprising that Assistant Commissioner Jenkins and the Commissioner thought that there was no attraction and retention problem. However, the calculation was simply wrong and the corporate position of the Police Force was based on entirely false premise. o). In reply, the Police Association submitted that the Commissioner had attempted to count persons holding OSND positions for the purpose establishing the 'headcount' of actual prosecutors, but then failed to count OSND prosecutor positions for the purpose of establishing the total number of prosecutor positions available to be held. This resulted in 205 prosecutors holding 200 authorised positions, as if there were no vacant prosecutor positions. p). This analysis was directly contrary to the evidence of Superintendent Trichter. He made it entirely clear that, on his most recent analysis (August 2010), there were 13 vacancies (on a 'headcount basis') in the 200 authorised prosecutor positions, making 187 positions filled - not 205. He included in his analysis of prosecutor strength 19 OSND prosecutor positions of which six were vacant, making 13 filled. He also included the 19 senior sergeant area prosecution co-ordinator positions of which three were vacant, making 22 filled. This gave a total of 22 vacant prosecutor positions (on a 'headcount basis'). A summary of his analysis is as follows: Total Filled Vacant Positions (headcount) Authorised 200 187 13 OSND 19 13 6 Co-ordinators 19 16 3 TOTAL 238 216 22

Attraction and Retention: Submissions for the Commissioner 41The Commissioner made, in summary, the following submissions: a). The claim for police prosecutors was an education-based claim which extended to all people in the police prosecutions who hold Prosecutor Education Program ('PEP') qualifications. The claims applied to PEP qualified officers, irrespective of whether they are in the prosecutors' stream. b). A snapshot of the numbers in the police prosecutions' stream at any time in the past few months identified approximately 200 police officers in the police prosecution stream. The last set of figures dated July 2010 showed 205 prosecutors. There are 200 authorised positions within the police prosecution stream. On that analysis alone, there was no valid shortage or attraction and retention issue. c). The Police Association relied on 19 OSND positions attached to the police prosecutions' stream to make out its case on shortage. However, the Commissioner submitted that those 19 OSND positions are not used exclusively for the prosecution stream to accommodate permanent officers with PEP qualifications. The 19 OSND positions exist for reasons of flexibility across the command and have been used to accommodate trainees. It was, in fact, a mistake to use the 19 OSND positions as a basis to demonstrate shortage. d). The analysis of the numbers within the PPC undertaken by the Police Association (via the evidence of Mr Howell) and the Commissioner (via the evidence of Assistant Commissioner Jenkins) was largely in agreement. However, Mr Jenkins' analysis should be preferred to the extent there was any discrepancy. Any criticism of Mr Jenkins' data on the basis that he included officers within the PPC outside of the prosecution stream was entirely misplaced. The Police Association's claim itself extended to relatively large numbers of people outside of the strict prosecution stream, including Co-ordinators, Heads of Court and Legal Advisers. e). Mr Howell criticised Mr Jenkins' evidence on the basis that it did not focus solely on the prosecution stream. The data disclosed that there were 200 authorised positions in the prosecution stream plus an additional 19 OSND, which are occasionally used to accommodate PEP qualified prosecutors and 32 co-ordinator positions. Within these positions there are 235 sworn officers. At the same time, there are 35 trainees in the PEP course. f). Mr Howell did not analyse how many authorised positions there were within the police prosecution stream. He was in no position to reject that 196 PEP qualified officers were in the prosecution stream that consisted of, inter alia, 200 authorised positions. Any shortage beyond that was a shortfall in OSND positions, which were not exclusive to the prosecution stream. Mr Howell then revisited his evidence and stated that there were "199 Prosecutors within the geographic court units". This figure was said to represent the number of authorised positions. Mr Howell then arrived at a figure of 211 officers out of a possible 237 positions, which included 200 authorised police prosecutor positions, 18 OSND positions, and 25 co-ordinator positions. It did not include any 'legal advice' positions, which are covered by the claim. g). Superintendent Trichter gave evidence that sick leave was improving since 2008 and the most recent culture survey was positive. He stated consistently in his evidence that he supported his officers being rewarded with pay increases as sought. This was qualified, however, on the basis that Superintendent Trichter did not consider such monies to be appropriate for attraction and retention. h). Superintendent Trichter's evidence should be accepted as: (i) His sympathies were clearly in the applicant's 'camp', yet he gave his evidence as objectively as possible; and (ii) He was also the only person to give evidence from the command who had a full grasp of the numbers and health of the PPC. i). Superintendent Trichter's prognostication concerning the future of the PPC should, in those circumstances, be preferred over the evidence of the Police Association's witnesses. Although he supported the Police Association's claim, he expressed his view that there will be no shortage in the PPC within the foreseeable future. j). Superintendent Trichter has implemented numerous initiatives which have improved the health of the command, both in terms of numbers and morale. The numbers in the PPC are such that any shortages exist only in OSND positions and will be filled in the future. Superintendent Trichter was so positive that he included in the formal business plan provision for overflow facilities so that PEP qualified officers will be placed in Local Area Commands as Brief Handling Managers capable of undertaking court work. Thus, the outlook for police prosecutors was extremely optimistic and was strongly supported by data and senior management.

Conclusion: Police Prosecutors 42It is plain from the foregoing summary of the respective contentions of the parties that, whatever may have been the historical circumstances affecting police prosecutors, the current issues of labour shortage, such as they may be found, are far removed from the shortage of nurses in public hospitals described by the Full Bench in Re Public Hospital Nurses (State) Award (No 3) [2002] NSWIRComm 325; (2002) I21 IR 28 at [44] to [45] and [89] (' Nurses No 3' ) and the shortage of pharmacists described by the Full Bench in Health Employees Pharmacists (State) Award and other Awards [2003] NSWIRComm 453; (2003) 132 IR 244 at [35] and [53] (' Pharmacists '). In this case, there is no consensus between the parties as to the existence of the relevant shortages or attraction and retention problems, let alone the existence of a recognised shortage in the relevant area as might attract public interest considerations. Moreover, there were significant questions raised in the proceedings as to whether there is a current deficiency and, more importantly, whether any such deficiency might exist for anything more than a moderate period of time before its complete rectification or avoidance. 43We do not wish to depreciate any of the evidence given by the Police Association witnesses in this respect. We consider that an honest attempt was made to grapple with complex information which was variable in nature. However, we do not think that evidence or the intricate analysis of existing workforce numbers when measured against the authorised strength of the PPC can stand in the face of the cogent evidence given by Superintendent Trichter that the shortages in the PPC ranks has either disappeared or will shortly do so. 44That evidence was not only compelling by virtue of the fact that it was given by an officer in a management position having an intimate knowledge of both the current working arrangements of PPC and historical problems associated with attraction and retention in this area, but also because the witness was candid in his support of the officers on whose behalf the Police Association made its claim, albeit that he considered the position as to attraction and retention in PPC had changed in recent times. In other words, Superintendent Trichter was not an advocate for the position of the Commissioner in this case, but reluctantly came to the conclusion that the problem he had historically advocated had existed, and which may be addressed by means of salary adjustments, either no longer existed or would not be expected to continue in the near future. 45In order to properly represent the cogency of that evidence, we propose to set it out at some length as follows: Q. Mr Trichter, it was put to you, and here I will provide the references of the transcript if I can, page 950.45 that you would see the police prosecutor's claims, if granted by this commission, as necessary to ensure sufficient numbers of prosecutors not just today but in the long term and you answered, "I don't think I can say that now". Do you remember? A. Yes, I do remember that. Q. Why do you say, did you say that? A. Perhaps let me explain it this way; I maintain today and I think I always have that I support the prosecutor's pay scale on the basis that I believe that it would improve the command. I feel I have no doubt about that. The reason why I feel it would improve the command is because, first of all, there may well be and anecdotally suggest to me that there in fact has been and may well be now officers in mainstream policing who may be disinclined to pursue a career as a police prosecutor because of, for quite a number of officers, a significant drop in pay in first coming over from other policing duties to police prosecutor duties because they are not performing shift work, they may not be receiving over time et cetera. It may well be that there is a pool of highly talented police officers there who might not be getting in to the command for that reason. By reason of the monetary difference in the initial starting pay as a trainee police prosecutor. Similarly, there may well be officers that are currently in the command or have been in the command, high quality officers that may well have left the command, or may leave the command in the future, because there is an opportunity to earn more money in another area of the Police Force or indeed even outside the Police Force. The prosecutor's pay scale may well go some way to capture those particular officers and bring them in to the command. Thirdly, I think the prosecutor pay scale would benefit the command on the basis that it would be perceived by the officers of police prosecutions as some kind of final recognition in terms of the value of the work they do and the regard that they are held within the New South Wales Police Force. For that reason I think that there may well be a significant positive morale effect in a prosecutor's pay scale, or indeed any pay rise specific to prosecutors for that matter. Finally, as I have indicated in cross-examination, it is a concern of mine that there may be a significant negative effect on morale if the outcome of these proceedings are that the prosecutors receive no additional remuneration within the award. For those four reasons, in my view, a prosecutor's pay scale would in fact benefit the command over all. Having said that, it emerged over time and in my mind it's very clear today, it began to emerge at about the time or just prior to the time that I made my affidavit in December last year, that other strategies that we have brought in over a period of time have had a significant positive effect on the actual staffing numbers within police prosecutions. In particular between late 2008 and today, a period of time of a little less than two years, we have managed without a prosecutor's pay scale to increase our actual numbers of police prosecutors performing prosecuting duties in court and occupying authorised police prosecutor positions by about 10 per cent. We have gone from around 199 to 202 in the later months of 2008 to 220, and slightly beyond, in the most recent months. For that reason - and that trend was evident from about the end of last year, it's clear that other strategies have addressed attraction and retention within the command. In fact we are at the point now, and we have been at the point for some time in my mind, where I have devised a scheme for being able to place excess prosecutors in to an overflow facility within the command. I feel that very soon, if the trend continues very soon we will have more prosecutors than we have authorised positions to place them. So I received approval from, first of all endorsement, from the prosecutor's advisory panel and approval from the deputy commissioner specialist operations to arrange for the targeted temporary transfer of additional police prosecutors in to brief manager positions. There is a range of positive implications for not only our command but the Police Force as a whole in being able to achieve that strategy. That is the medium to long term plan for the command and that features in fact in the strategies that are documented in our most recent command business plan. 46We have great sympathy for the position of police prosecutors in this matter. There is no doubt that they have historically suffered a work environment in which there was a shortage of police prosecutors brought about by a combination of attraction or retention problems. There is also no doubt that the management of the Police Force created an expectation that those shortages would be rectified by means of a salary increase. The Police Association may also justifiably feel that, at least in part, the shift in the Police Force's position in relation to that question came about because of the impact of the NSW Government's wages policy. 47However, we have ruled that the leave reserved provisions (and the parties' agreement) does not extend to historical problems in attraction and retention in the PPC. It follows that we can only have regard, under the conditions negotiated by the parties, to current attraction and retention problems or, perhaps, future attraction and retention problems. As neither can be proven in the case mounted before us on behalf of the Police Association, on a proper balancing of the evidence, we consider that the claim with respect to police prosecutors must fail, particularly having regard to the fact that the Police Association's application would result in a permanent adjustment to salaries. In so concluding, we should emphasise that our decision makes no observation whatsoever as to the contentions of the Police Association about changes in the work value of police prosecutors. This remains an entirely open question. The only matter we have resolved is whether the Police Association was successful in passing the threshold set by its own agreement for the bringing of these proceedings. It has failed to do so.

Nature of the Work 48The TOU is a Unit within the State Protection Group ('SPG'), which, in turn, forms part of the Counter Terrorism and Special Tactics Command under the general command of the Deputy Commissioner, Specialist Operations. The TOU is the principal special weapons and tactics Unit within the NSW Police Force, and provides a 24-hour tactical response service to all parts of New South Wales. It is usually only called out in high risk situations, including to contain and resolve siege/hostage and armed offender situations, to arrest armed and dangerous offenders in high risk situations, to conduct high risk searches of premises, to carry out escort and security duties of a high risk nature (including for internationally protected persons such as heads of state and at-risk holders of public office) and to provide support services for major high risk operations. The TOU may also be required to use its specialist skills, equipment and expertise to provide assistance with operations that may not be high risk in nature. 49TOU operatives are equipped with specialist weapons and munitions that are not generally available to police. They are based at the Sydney Police Centre. Unlike the majority of other police, the TOU are not called to intervene, investigate and gather information. The job of the TOU is to contain and resolve a situation by force if necessary. This tactical capability is not replicated anywhere in the NSW Police Force. 50Entry into the TOU usually commences by an officer responding to an expression of interest, published by the SPG in the internal police publication known as the 'Police Monthly' (formerly known as the 'Police Weekly'). The minimum essential criteria to apply to join the TOU were that an applicant be a police officer with at least three years' service residing within a particular geographic location who successfully completes a rigorous medical examination, psychological evaluation, and a rigorous fitness test known as a 'barrier test'. They must then undergo a seven day selection course. Officers who are selected must then undertake a Special Weapons and Tactics program of 12 to 14 months' duration. This course trains officers in the weapons, skills and tactics used by the TOU, and includes the minimum inter-operability training required under the National Counter Terrorism Plan for Tactical Police. 51TOU operatives are required to sustain ongoing training to maintain accreditation in the 20 core skill sets (six monthly for the core skills and annually for the more specialized skills). They also undertake the annual Mandatory Continuing Police Education courses, which are required of all police. 52The TOU has a full-time training Sergeant who plans, coordinates and implements all the training within the TOU. Instructors for TOU training are drawn from the operational pool of TOU operatives, who are taken out of the operational roster to permit them to be dedicated to the training of operatives. There is a team of trainers associated with each skill set. The skills base required of TOU operatives is so specialised that only members of the TOU are able to deliver that training. 53The Full Bench conducted an inspection on 17 March 2010 to view the capabilities of the TOU. There is no dispute that this Unit is highly trained, highly skilled and extremely capable. 54In comparison to most police officers, TOU operatives are required to accept a 'Conditions of Duty Statement', which relates to various elements of duty within the TOU, including acknowledging the 'on-call' requirement, accepting a tenure agreement, accepting a residential boundary restriction and various other matters.

Attraction and Retention: Submissions for the Police Association 55This paragraph is subject to a non-disclosure order under s 164A of the Industrial Relations Act . See [69]-[72] of this Decision.

Attraction and Retention: Submissions for the Commissioner 56This paragraph is subject to a non-disclosure order under s 164A of the Industrial Relations Act . See [69]-[72] of this Decision.

Conclusion: TOU 57A more complicated picture emerges regarding the question of shortages in the TOU. 58Whist there may have been some historical difficulties regarding retention in the TOU, we accept the submissions of the Commissioner that this ceased to be so, at least as a serious issue, from approximately 2007. No officers were lost from the Unit in 2009. There was a justifiable fear of recruitment activities by the IDG, but this did not materialise in actual transfers from the Unit. The IDG only attracted two officers in 2010. We accept the concession by Superintendent Benson, Commander of the State Protection Group, that retention is, in essence, not a present day problem for the TOU. 59It may be that the IDG represents a potential future risk, but this is hardly a cogent justification for a permanent salary increase for the TOU, particularly where based upon leave reserved conditions relating to current shortages. Nor is there anything in the evidence before us as to medical discharges or long-term sick leave as might indicate potential problems (for retention) as would warrant intervention under the leave reserved clause. In the final assessment, we consider that the Police Association's claim for the TOU, if it is to survive, must be made out upon the basis of attraction. 60The question as to whether there were attraction problems in the TOU was beset by arguments about the significance of OSND positions. There were, however, a number of particular issues dividing the parties: the significance of potential medical discharges; policy decisions taken by the command regarding the use of OSND positions for training purposes and the use of the tenure policy and general practices regarding recruitment. 61On balance, we consider that the 10 training OSND positions should not be counted in order to determine whether there is an attraction problem in the TOU. We consider that these positions are only, in reality, transitory positions used for the purposes of training. However, that does not dispose of the issue because we consider that the Police Association succeeded in demonstrating that there were, nonetheless, some shortages within the TOU, although not of the order or character of the shortages considered in the Pharmacists' and Nurses No 3 cases. 62Nevertheless, we have a considerable disquiet over whether that attraction problem, which is relatively recent in origin, should constitute a basis to activate the leave reserved clause or, more importantly, to constitute a proper justification for permanent increases in salary, even assuming that there may be some work value elements associated with those shortages (at least in relation to the volume of work). 63These considerations bring to attention the issues raised by the Commissioner as to the reasons why there may be a current attraction problem. We agree with the Police Association that some of the Commissioner's submissions, in this respect, were somewhat odd, as they seemed to take the form of a criticism of one of his own commands over which he had overall responsibility and control. However, the issues raised do have some significance in so far as they bear upon the question of whether the current attraction problems, such as they are, are capable of remedy by the taking of steps readily available to either the command and/or hierarchy of the Police Force so as to ameliorate any shortages. 64These questions are not easily answered because it is not possible to know with any real certainty whether changes to the TOU policy, as asserted by the Commissioner, would materially reduce shortages (even though they appear to be theoretically capable of producing such a result). On balance, and not without some reservation, we have taken the view that there has been sufficient doubt raised by the Commissioner in relation to policy and administration questions of the TOU, particularly in relation to failure to attract new recruits and engage in training programmes with sufficient regularity, as to conclude that there is not a sufficiently safe basis to find that there is a shortage in the TOU arising through attraction (that may not be addressed in the short to medium term through non-salary based methods). 65In short, we consider that the Police Association has not demonstrated that there is an enduring and significant shortage arising through attraction difficulties in the TOU. This conclusion is a fortiori when regard is had to the fact that the Association not only wishes to bring about permanent changes to the salary of police officers in the subject areas, but wishes to additionally restructure the current relativities within the award based upon attraction and retention factors (we note, in this latter respect, the evidence reveals that attraction and retention issues do, it would appear, exist in other significant parts of the Police Force).

CONCLUSION 66In many respects, the current proceedings may be considered disappointing. The agreement between the parties reached at the conclusion of the salary round has precluded the consideration of many serious wage merit issues which may have been otherwise ventilated by the officers in the PPC and TOU. Nonetheless, we are presently bound to consider the matter within the parameters fixed by the parties and we have reached a conclusion accordingly. 67We do not consider that the threshold set by that agreement has been reached by the Police Association and, therefore, its case must fail in respect of salary claims, restructuring of classifications and a general claim for an allowance for attraction and retention. The claim must, therefore, be dismissed and we do so accordingly. In doing so, we emphasise that we make no observations whatsoever as to the general merits of the claim of the subject police officers, particularly in relation to claims associated with work value.

ORDERS 68We order that the application is dismissed.

NON-DISCLOSURE 69The decision in this matter was handed down on 8 April 2011. In handing down the decision the President stated: There is a question of confidentiality that needs to be addressed in relation to the publication of the Commission's decision. In the reasons for decision it is stated: There were a large number of witnesses called for both by the Police Association and the Commissioner, in what were complex proceedings. Much of the evidence was given in closed session or under confidentiality restrictions. We have decided not to attempt any summary of that evidence, as it is simply not feasible to disentangle confidential from non-confidential evidence for the purpose of publishing a decision. It is also strictly unnecessary to do so given the basis upon which this matter has been ultimately resolved. A list of those persons who gave evidence (whether called to give evidence or not) and their positions appears in Annexure A to this decision. Despite our efforts in attempting to avoid revealing evidence that may be regarded as confidential it may be that some of the evidence referred to in the decision should not be publicly revealed. The parties are best placed to advise the Full Bench whether this is so. Accordingly, the decision we are about to publish is subject to a non-disclosure order under s 164A of the Industrial Relations Act 1996. The Commission orders that: (1) Access to the decision in this matter shall be limited to the senior officers of the parties and their lawyers. The parties are provided with five copies each of the decision. The decision shall not be copied; (2) The parties shall examine the decision for the purpose of determining whether there is evidence referred to in the decision that should be kept confidential; (3) The parties shall report to the President acting under delegation of the Full Bench at 9.30 am on Monday 11 April 2011 for the purpose of advising his Honour whether there is any part of the decision that should be redacted and if so the reasons for doing so; (4) The President shall consider any submissions of the parties regarding the maintenance of confidentiality and shall redact the decision or the relevant parts of it if his Honour considers it necessary to do so pursuant to s 164A of the Act; (5) The decision, in redacted form or otherwise, shall then be publicly released at a time determined by the President. 70On 11 April 2011 senior counsel for the respondent indicated further time was needed to obtain instructions. Mr Howell for the applicant indicated the applicant supported a sensible application to restrict the disclosure of certain information relating to the TOU, if it was necessary. The position had not changed. 71Further time was granted and on 13 April the respondent indicated the areas of concern regarding confidential information disclosed in the judgment relating to the operations of the TOU. These concerns were in relation to [53], [55] and [56]. The Commission accepts those concerns as being genuine and legitimate. Accordingly, [53] of the Decision has been amended to remove confidential information that may be prejudicial to the TOU's operation. In relation to [55] and [56] of the Decision, in the interests of protecting confidential evidence elicited during the hearing and in the interests of justice, these paragraphs have been removed and have been placed in a sealed Annexure to the reasons for decision. The Annexure, which is Annexure B, is to remain on the Commission's file and subject to the following order under s 164A of the Act: (1) Pursuant to s 164A of the Industrial Relations Act 1996 disclosure of Annexure B to the reasons for decision is restricted to the senior officers of the parties and their lawyers. That does not prevent those persons from discussing the content of Annexure B with members of the Tactical Operations Unit. (2) Annexure B shall be retained in the Commission's file in a sealed envelope marked confidential and shall not be disclosed to persons other than to senior officers of the parties and their lawyers unless these orders are varied or revoked. 72The applicant also sought the removal of the names of TOU operatives referred to in Annexure A to the reasons for decision. The Annexure has been redacted accordingly.

Appendix A 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: 20 April 2011

Crown Employees (Police Officers - 2009) Award [2011] NSWIRComm 43

At a glance

Court

Decision date

Before

Source

Judgment (21 paragraphs)

Cases Cited (11)