Dispute - Commissioner of Police and the Police Association of New South Wales re industrial action [2001] NSWIRComm 89

DECISION (extempore) [2001] NSWIRComm 89

1 The Police Association of New South Wales, pursuant to leave granted by the Commission today, has made application in these proceedings for the making of a new award by consent entitled the Crown Employees (Police Officers - 2001) Award. The proposed award is intended to cover all police officer members of the Police Service of New South Wales, including probationary constables, except those police officers employed as members of the Police Service Senior Executive Service. 2 The award will be the first award made covering both commissioned and non-commissioned police officers and is seen by the parties as the logical next step of the amalgamation of the two registered industrial organisations which previously covered the separate groups of police officers. The Labor Council of New South Wales has appeared today as it has throughout these proceedings and has supported the making of the consent award. 3 It is proposed that the new award will rescind and replace all current awards of the Commission relating to both non-commissioned and commissioned police officers. There are six current awards which are all the subject of the section 19 review process before Grayson DP. 4 The current proceedings arise from a notification of dispute lodged by the Commissioner of Police on 8 December 2000 and have been the subject of a number of proceedings before me in December 2000, February 2001 and on 5 March 2001. In addition, during the recent law vacation, the proceedings were listed before the relevant vacation judge and came before Boland J and the Vice-President respectively on 8 January and 19 January 2001. 5 As would be expected in relation to a new consent award which will have the effect of rescinding all current awards of the Commission relating to both commissioned and non-commissioned police officers, the document provided is voluminous and has been concluded as a result of lengthy negotiations between the parties, with the assistance of the Commission. The Commission has also been advised that the proposals for improvements in conditions of employment and salaries have been the subject of a plebiscite amongst the members of the Association, which has resulted in a significant majority of those members voting in favour of the new consent award. 6 Submissions have been made before the Commission today by Mr Hatcher of counsel on behalf of the Police Association of New South Wales and Mr Shaw of Queen's Counsel, appearing for the Commissioner of Police. Counsel have submitted that the award should be made pursuant to principle 2(e) of the Commission's wage fixing principles - see State Wage Case 2000 (2000) 97 IR 93. Counsel have also, during the course of their detailed submissions, drawn attention to the particular matters which are the subject of changes or improvements in the new award. 7 It has been emphasised that the consent award is to be read with, and seen as the effectuation of, a detailed memorandum of understanding between the parties, which was executed earlier today. A feature of the arrangement between the parties is that it is consistent with other memoranda of understandings reached by the Government or government employers with other registered trade unions and embodied in awards of this Commission. 8 The Association has also emphasised that the making of the award is to occur on the basis of the honouring by the parties of certain understandings and agreements between them which have been referred to in appropriate detail and recorded in the transcript of the proceedings today. The more important of the agreements between the parties, which are embodied in the award proposed to be made, or in cognate provisions of the memorandum of understanding, are as follows. 9 The consent award and related arrangements between the parties provide for a series of salary increases phased in between 1 January 2001 and 1 July 2004 as follows: 2 per cent with effect from 1 January 2001, 2 per cent with effect from 1 January 2002, 3 per cent with effect from 1 January 2003, 4 per cent with effect from 1 January 2004 and 5 per cent from 1 July 2004. 10 In that respect the parties agree that a subsequent award embodying the increases applicable after the expiration of this award will be made at the relevant time. 11 The parties have also identified in the memorandum of understanding a number of key priorities described as "Key Priorities - Service Wide Agenda". These include the progression of important issues such as employee assistance, assessment and promotion, optional disengagement and performance management. Another important feature of these key priorities is the progression of issues relating to improvement to service delivery and particular matters which have been identified in this regard include flexible rostering, first response policing agreements, continuing of the civilianisation process, lateral entry and the implementation of the selection and appointment of Leading Senior Constables (Field), to which reference will be subsequently made. 12 The parties have also committed themselves to the modernisation of conditions of employment and this will involve, inter alia, the development of a system of accrual of annual leave to replace that currently in place. The new system will be more in line with that applicable in the New South Wales Public Service. 13 There is agreement to the implementation of mechanisms to replace the one-off payment of annual leave loading with adjustments to salary. A mechanism has been agreed for rolling up the annual leave loading into the salaries of non-commissioned officers. Agreement has also been reached as to optional salary packaging to be available for superannuation and other benefits on a basis similar to that already provided in a number of other public sector awards of the Commission. 14 The parties have also agreed to the introduction of an Operational Detectives Allowance to replace the current Special Expense Allowance. This is one of a number of changes to conditions of employment which represent an agreed implementation of recommendations of the Wood Royal Commission into the Police Service. In relation to the changes in this regard, detailed provisions are contained in the memorandum of understanding. 15 Consistent with the parties' commitment to the modernising of conditions of employment, there will be changes as to the payment of professional qualification allowances, and the parties have specified priorities in the identification and implementation of mechanisms relating to professionalism in policing, which includes important issues such as professional and ethical conduct, secondary employment, professional knowledge and competencies. 16 Another important issue agreed between the parties relates to "optional disengagement for police officers". Again, this issue is the subject of detailed provisions in the memorandum of understanding and also involves the implementation of an important recommendation made by the Royal Commission into the Police Service. It is relevant to note that as to this matter the necessary commitment as to funding has already been provided by Treasury. 17 A further important improvement in conditions of employment is the proposal relating to the introduction of the classification of Leading Senior Constable (Field). Again, this matter is the subject of detailed provision in the memorandum and again the necessary funding from Treasury has been approved. 18 I should note at this point that I accept counsels' submissions which have been directed to demonstrating that the proposed award complies with the requirements of the Industrial Relations Act 1996 and the relevant wage fixing principles. The proposed new award arises from detailed negotiations between the parties over a lengthy period of time. 19 In addition, the proposed award is being made in the context of dispute proceedings notified pursuant to section 130 of the Industrial Relations Act , in which a large number of compulsory conferences were held. These conferences included a number of conciliation proceedings between the parties, such conferences being chaired by the President of the Commission, the conferences taking place both in public hearing and in private. 20 It is not necessary to detail the course of the negotiations between the parties or those parts of the negotiations in which the assistance of the Commission was provided. It is sufficient to observe that the outcome of the industrial negotiations between the parties represents a considered outcome reached by sophisticated industrial parties, assisted by experienced legal representation with appropriate resort to the processes of conciliation available to industrial parties under the provisions of the Industrial Relations Act . The parties are to be congratulated on reaching what is an appropriate settlement of their industrial differences. 21 The Commission has closely considered the detailed submissions made by counsel as to the award generally and most particularly in relation to the improved conditions of employment and salaries contained in the proposed award for both commissioned and non-commissioned police officers. The Commission finds that the proposed award complies with the requirements of the Industrial Relations Act and also that it is consistent with the Commission's wage fixing principles. 22 Three other matters of detail should be referred to. First, that the parties have agreed that certain enterprise agreements will, upon the making of this award, be terminated by use of the relevant provisions of the Act, having regard to their agreement in that regard. 23 Second, the parties rely for the making of an award operative from a date prior to the filing of the award application today, on two provisions of the Act. The first is s 15(3)(c) which refers to the relevant dispute giving rise to the award being notified to the Commission on a date prior to the actual application for the award, and also the recently inserted s 15(4) which enables, in the circumstances here applicable, a retrospective award being made by consent of the parties. 24 The third matter relates to operative date of the first salary increase. Although for the majority of officers under the award the first salary increase will be from 1 January 2001, that applicable to commissioned officers will not occur until 1 March this year, because of the expiry date of the current instrument applicable to their employment. 25 The Commission, in light of its findings based on the submissions and other material put before it, makes an award to be known as the Crown Employees (Police Officers - 2001) Award in terms of the document filed by the Police Association of New South Wales on 24 April 2001, together with the amendments to that document which have been made by consent of the parties during the proceedings today. 26 In accordance with the terms of that document, the award takes effect from 1 January 2001 and shall remain in force for a period of two years from that date. The award now made rescinds and replaces the six awards set out in Schedule 1 of the application. 27 The Police Association of New South Wales is directed to file and serve within seven days in both hard copy and electronic form two copies of the award made by the Commission today. These proceedings are now concluded.

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