Public Service Association and Professional Officers' Association Amalgamated Union of NSW v Industrial Relations Secretary on behalf of the Department of Justice
In these proceedings the Public Service Association and Professional Officers' Association Amalgamated Union of NSW ("PSA") represents Sheriff's Officers ("Officers") employed in the Department of Communities and Justice.
The proceedings were commenced on 6 September 2018 by the PSA notifying the Industrial Registrar of an industrial dispute ("Notification") pursuant to s 130 of the Industrial Relations Act 1996 (NSW) ("Act"). The dispute centres on two issues: firstly, what constitutes the "headquarters" of an Officer for the purposes of the Crown Employees (Public Service Conditions of Employment) Award 2009 ("Conditions Award"); and, secondly, is it reasonable for an Officer to be directed to travel with and store at their home overnight the safety and security equipment with which they are provided to perform their duties?
[2]
Background
The Notification was originally brought by the PSA on behalf of its member, Mr Michael Belavic. Mr Belavic is an Officer. The Notification detailed particular concerns held by Mr Belavic relating to his own working arrangements. The Commission's assistance was sought to resolve those concerns.
Over the course of the proceedings it became clear that the PSA's concerns were not confined to Mr Belavic. The issues arising were said to have application to all Officers. That said, Mr Jaloussis for the PSA stated that the PSA was not suggesting that Mr Belavic was representative of all Officers across the State, [1] and stressed that Mr Belavic was being put forward only as an example of an Officer affected by the matters in dispute. However, the majority of the evidence related only to Mr Belavic's circumstances.
While the scope of the dispute expanded beyond Mr Belavic to (potentially) all Officers, there was a reduction in the number of questions which the PSA sought to have the Commission determine. On 7 February 2019 the PSA forwarded to the Industrial Registry a document containing 14 questions which it sought the Commission to resolve. The statements and submissions that were subsequently filed by the parties, pursuant to directions I made on 8 February 2019, sought to address those questions.
In an email to the Industrial Registry dated 14 May 2019, the PSA reduced to four the number of questions for determination. I return to those questions at [36] below, as they will be better understood with some knowledge of the factual context of the proceedings.
The reduction in the matters requiring determination meant that significant portions of the evidence and submissions had little or no relevance to the disposition of the matter. I propose to deal only with that evidence or those submissions that I consider relevant to addressing the questions put before the Commission.
With that preamble, the following is the background to the dispute, about which there was little factual contest.
Officers are employed under the Crown Employees (Sheriff's Officers) Award ("Sheriff's Award"). Clause 5 provides that the Conditions Award applies to the Sheriff's Award, except in respect of two provisions that are not relevant to these proceedings.
Clause 3.32 of the Conditions Award is in these terms:
3. Definitions
…
3.32 Headquarters means the centre(s) to which an employee is attached or from which an employee is required to operate on a long-term basis.
This definition is relevant for determining, amongst other things, whether under the Conditions Award an employee is entitled to:
1. "travelling compensation" under cl 26, which provides that "authorised official travel and associated expenses, properly and reasonably incurred by an employee required to perform duty at a location other than their normal headquarters shall be met by the Department". It is this clause on which the fourth Question for Determination depends; and
2. payment for "excess travelling time" under cl 27 if they are "directed…to travel on official business outside the usual hours of duty to perform duty at a location other than their normal headquarters".
When performing their duties Officers are required to carry handcuffs, an extendable baton and an aerosol canister of oleoresin capsaicinoid (or capsicum) spray ("OC spray") ("Appointments"). They are also issued with ballistic vests, which are tailored to fit the individual Officer. Officers must carry their Appointments at all times when they are on duty. While they may be directed to wear their ballistic vests at certain times, they may not be required to do so at all times. Mr Belavic described the wearing of ballistic vests as optional unless directed by the Officer in Charge to wear it. [2]
I digress to observe that the distinction I have drawn between Appointments and ballistic vests might be an artificial one. During the proceedings the term "appointments" was used to include ballistic vests. However, as will become clear, it is convenient in the circumstances of this case to draw a distinction between ballistic vests and other Appointments.
Officers are not permitted to wear their Appointments or ballistic vests when travelling to or from work.
The Appointments and ballistic vests are defined as "prohibited weapons" for the purpose of the Weapons Prohibition Act 1998 (NSW): s 4(1), Sch 1. By virtue of their position, Officers are exempt from the requirement under the Weapons Prohibition Act to have a permit to possess or use the Appointments and ballistic vests: Weapons Prohibition Regulation 2017 (NSW) cl 4, Sch 1, 2(1)(b), 3 and 11(2). In each case it is a requirement that the Officer store or keep the relevant item "in a safe and secure manner when it is not being used".
The Office of the Sheriff of NSW has "standard operating procedures" ("SOPs") relating to each of handcuffs, extendable batons and OC spray. The SOPs set out in detail how the relevant item is to be carried, used and stored. Each SOP includes entries in the following terms:
"Each Officer is personally responsible under the Weapons Prohibition Regulation 2017 to ensure that Appointments issued to them are stored in a secure location when not in use. The legislation provides for significant criminal penalties for failure to do so.
…
Appointments are to be secured each day prior to completion of duties. Appointments are not to be taken home, unless approval from Officer in Charge has been given for the purpose of working at another centre, weekend Bails Courts, or commencing field runs from home. In the above instances, Officers are required to secure their appointments in their homes in a manner which prevents access by children, visitors or potential intruders."
Officers are required to wear a uniform when they are on duty. They are not permitted to wear their uniforms when travelling to and from work.
Courts in New South Wales are allocated to five geographical regions. Within each of those regions courts operate on a "hub and satellite" model. A particular courthouse is regarded as the "hub" and it has a number of "satellite" courts. There are approximately 25 hub courts in New South Wales (not including the Coroner's Court in Sydney). The number of satellite courts associated with each hub court varies - from as few as two to as many as 17 - as does the distance between the hub and the satellites.
The evidence in this case centred on Wollongong hub, being that in which Mr Belavic is employed. Wollongong Court has three satellite courts, namely Port Kembla, Albion Park and Kiama. Officers in the Wollongong hub work to a roster which may require them to work at Wollongong Court or at one of the satellite courts. When he is not doing field enforcement Mr Belavic is rostered "50 per cent Wollongong and 50 per cent Port Kembla". [3]
There was no evidence as to rostering arrangements in respect of other regions or hubs.
Officers are required to commence work at the start of their shift, whether at a hub court or satellite court, in their uniform, with Appointments and, if required, their ballistic vest. This may entail the Officer having to take their Appointments and ballistic vest home with them in order for them to be available for use the next day.
If an Officer takes their Appointments and ballistic vest home they are required to ensure that their transportation and storage is in compliance with the SOPs, the Weapons Prohibition Act and the Weapons Prohibition Regulation.
During the hearing the Sheriff gave evidence that arrangements have been made to ensure that generic sets of Appointments are available at every satellite court if required by the Officers. It would seem to follow as a practical matter that an Officer would only be required to transport Appointments and store them at their home if prior arrangements had not been made for a generic set to be available at the relevant satellite court. As ballistic vests are largely custom-made, it would seem to be necessary that if an Officer was required to wear one whilst on duty at the satellite court he or she would need to transport the vest and store it overnight.
The Office of the Sheriff provides to Officers a storage case which can be used both for the transportation of Appointments and ballistic vests, and for securing them in the Officer's home. The case is secured by a combination lock. It comes with an adjustable locking cable which allows for it to be secured to a fixed point in the Officer's home or on his or her vehicle.
The Office of the Sheriff has developed a draft "Appointments Storage Policy" which, as its name suggests, sets out the requirements for the safe storage of Appointments and ballistic vests when they are either being transported or stored away from a court. The Office of the Sheriff sought and obtained a feedback from the PSA on the draft policy. The policy has not yet been promulgated and I infer that this has been deferred pending the outcome of these proceedings.
There was no dispute that the use of the storage cases for travel and overnight storage in accordance with the draft Appointments Storage Policy would enable compliance by an Officer with any obligations he or she would have under Weapons Prohibition Act or Weapons Prohibition Regulation.
In December 2018 the Sheriff wrote to the Commissioner of Police setting out the proposed storage arrangements in relation to ballistic vests, including when they were being transported by Officers or being stored at an Officer's home. In his response, the Commissioner of Police informed the Sheriff that the NSW Firearms Registry had reviewed the proposed storage arrangements and considered them to be "satisfactory".
Mr Belavic objects to the storage of Appointments and ballistic vests in his home. As he stated under cross-examination: [4]
"I don't want prohibited weapons at my residence."
For this reason, coupled with the direction that he not travel in his uniform, Mr Belavic's practice is to store his Appointments and ballistic vest at Wollongong Court. If he is rostered to work at Port Kembla Court he travels first to Wollongong Court to change into his uniform and collect his Appointments before proceeding to Port Kembla Court. The process is reversed at the end of the day.
Mr Belavic stated that one of the factors requiring these arrangements was the lack of an appropriate room in which to change at the Port Kembla Court. This was disputed by the respondent. I do not consider it necessary to traverse this evidence. To the extent that this issue needs to be determined, I am of the view that the facilities for changing into and out of uniform at Port Kembla are adequate, if not ideal.
It is common ground that there are no shower facilities at Port Kembla Court, while such facilities are available at Wollongong Court. There was no evidence to suggest that having showers at each court was necessarily required.
Mr Belavic stated that in the past he had recorded his start time from Wollongong and his ceasing time when he returned to Wollongong, for which he was paid "without question". [5] This changed from 20 August 2018 when the Sheriff issued a directive that Officers would be considered to officially commence their duty when they were in full uniform and on their designated post. They would be regarded as officially ceasing duty at the completion of their rostered shift or when they had been dismissed by their Officer in Charge. The effect of this directive was that Mr Belavic would only be paid from when he presented himself in uniform at Port Kembla Court to the end of his shift. Time spent travelling between Wollongong and Port Kembla was no longer paid.
Further, Mr Belavic had in the past been provided with a departmental vehicle to travel between the Wollongong courthouse and Port Kembla. In early 2018 Mr Belavic was directed to no longer use departmental vehicles for such travel. Mr Belavic uses his own car for these trips but does not receive any allowance for doing so.
The changes referred to at [32] and [33] above appear to have been the catalyst for the filing of the Notification.
Officers rostered to work at Albion Park or Kiama are either provided with a departmental vehicle to travel to and from Wollongong courthouse, or transported by the Officers conducting field work. This was said by the respondent to be due to the courts in those locations generally sitting for less than a full day; the availability of the vehicle allowed the Sheriff's Officer to return to Wollongong or otherwise attend to alternative duties. It is not clear whether the time spent by Officers travelling between Wollongong and either Albion Park or Kiama is paid.
[3]
Questions to be determined and relief sought
The PSA has sought to have the following questions answered by the Commission ("Questions for Determination"):
"Question 1 - Does a Sheriff's Officer have a single headquarters from where they operate?
Question 2 - Is the hub court where a Sheriff's Officer is based, the Officer's 'headquarters' for the purposes of the Conditions Award?
Question 3 - Where Sheriff's Officers are directed to take their ballistic vest and/or appointments home because they will be working at a satellite court the following day (being a court that does not have sufficient sets of appointments for the officers who will be working there):
a. If Officers leave their vest and/or appointments at their hub court, and collect it/them in the morning before travelling to the satellite court, are they 'on duty' from the time they collect their vest and/or appointments from the hub court until they return them to their hub court after ceasing duty at the satellite court?
b. Is it reasonable for Officers to be directed to keep the storage case/cases (to be supplied by the Sheriff) containing their appointments within their homes overnight?
Question 4 - If officers are directed to commence work on the following day at a satellite court, and they use their own vehicle because they are not provided with a Sheriff's vehicle, are they entitled to receive 'travelling compensation' under clause 26.1 of the Conditions Award for that section of their trip from their hub court to the satellite court and return?"
In terms of relief, the PSA requested that the Commission vary the Sheriff's Award. Mr Jaloussis stated the PSA's position as follows: [6]
"JALOUSSIS: I'd be seeking an award variation to the sheriff's award in respect of questions 1, 2 and [3(a)] that would - and maybe, obviously I have to word it, but it may well be that in circumstances, blah, blah, blah, where there are ballistic appointments available at a satellite court, a sheriff's officer shall not be directed to take their appointments home. Words I'm thinking on my feet at the present time, along those lines. Because there could not be any objection to having that put into the award if what the sheriff says is going to be the case. There won't be any direction, therefore to prohibit such a direction there shouldn't be a problem. It should go in by consent.
And we'd also be seeking an award variation to the sheriff's award so that we do define in respect of sheriff's officers what is headquarters. And again I've played around with it but I'm not ready to provide that variation today, Commissioner. If we are successful, then we can draft something at that time." (Sic)
[4]
Consideration
As already stated, the vast majority of the evidence reflected the arrangements under which Mr Belavic works in the Wollongong hub. There is very little evidence as to what arrangements are in place in any other region or hub.
There is no direct evidence that any Officer other than Mr Belavic has any extant concerns with or opposition to a direction that they transport their Appointments to and from home and store them in their home. The high point of the evidence in this regard was in the following exchange that I had with the Sheriff: [7]
"Q. Do you understand what - do you have any understanding as to why they didn't want to travel with the appointments?
A. No, I - because officers have been travelling with their appointments since 1999, since they were first equipped with them, and it really only became an issue or I became aware of it being an issue I think it was back in August '18 or something like that, the date. So prior to that there hadn't been any issues raised with me or head office or through the JCC. So I still - I'm still not fully sure of what the actual reasons are. There's a number of reasons and different for different officers. It's not one sort of systemic issue. It's personal issues and other things and it's all - different officers have different reasons."
As will become clear, the lack of evidence as to arrangements in place outside of the Wollongong hub, and as to the views of Officers other than Mr Belavic, makes it difficult to determine conclusively the issues in dispute between the parties.
[5]
What is the "headquarters" for a Sheriff's Officer?
Questions for Determination 1, 2 and 4 all have a common root - how is the definition of "headquarters" in cl 3.32 of the Conditions Award to be construed in its application to Officers?
The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument): s 175 of the Act. The Award is an industrial instrument: s 8 of the Act.
The language of s 175 makes it clear that powers of the Commission under the section do not stand alone, permitting applications for declaratory relief simpliciter. The power to provide an interpretation of a clause in an award must be associated with the exercise of the Commission's other powers under the Act: Health Services Union New South Wales and Ambulance Service of New South Wales [2017] NSWIRComm 1057 at [10] (Seymour C), citing Australian Rail, Tram and Bus Industry Union, New South Wales and State Transit Authority [2013] NSWIRComm 102 at [67] and Health Services Union v Director-General, Department of Health (NSW) (2010) 193 IR 359; [2010] NSWIRComm 42 at [57] - [58].
In the recent decision of New South Wales Nurses and Midwives' Association v Health Secretary on behalf of Western NSW Local Health District [2019] NSWIRComm 1025 the Full Bench restated the principles of award interpretation as follows:
"21. The principles relevant to award interpretation are well settled in this jurisdiction. These were set out in the decision of Walton J, President in the matter of Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury 87 NSWLR 41, where detailed consideration was given to the principles by reference to the relevant authorities. The statements of principle were set out in the decision at [115]:
(1) The legal meaning of 'a provision of an award' is to be ascertained through a process of construction by which the intention of the provision is deduced. It is the duty of the court to give the words of the award a meaning that the authors of the award are taken to have intended them to have;
(2) The process of construction must begin with a textual analysis of the words of the provision, that is, a consideration of the ordinary and grammatical meaning of the words;
(3) Whilst the surest guide to the meaning of an award provision is language used in a provision of an award, the meaning of the text may require consideration of the context (which includes, inter alia, consideration being given to the instrument as a whole). Thus, the initial step to construction may involve construing the words of an award provision in context;
(4) The consideration of the words of the provision of an award in context includes examining the general purposes and the policy of the provision derived from a statement of policy in the award or from the terms of the award. Thus, the legal meaning may be ascertained by reference to general purpose, consistency and fairness, although, again, the purpose of a provision derives in its text and structure. A relevant consideration in this respect is the mischief remedied by a provision. (See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47]);
(5) An examination of the purpose of an instrument is very much part of the traditional approach to award interpretation. It was accepted by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops [1961] AR (NSW) 312 at 314 that it is proper to pay regard to 'the purposes for which a provision is intended' (as quoted in Bryce v Apperley at 452 and Kingmill at [63]). An application of this approach may be found in the judgment of Hill J in Australian Workers Union (NSW) v Pioneer Concrete (NSW) Pty Ltd (1991) 38 IR 365 at 380, where it was stated that provisions in awards must be construed reasonably and realistically, 'having regard to their purposes and objectives'. I will add further to this consideration when returning to the notion, developed in the dicta of Street and French JJ, that a generous construction should be adopted in the interpretation of awards;
(6) The determination of the purpose or intention of a provision of an award neither permits nor requires a search for what those who drafted or made the award had in mind when the award was made: see Construction, Forestry, Mining and Energy Union (NSW Branch) v Delta Electricity [2003] NSWIRComm 135; (2003) 146 IR 360 at [44] and NSW Fire Brigades at [47]. Further, it is not for the court to construct its own idea of a desirable policy, import it to the award maker and then characterise it as the purpose of the provision: see Brown at [40] (Bathurst CJ).
22. In addition, Walton J cited with approval authorities to the effect that awards should receive a generous construction: George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504; City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at [57]; Kucks v CSR Ltd (1996) 66 IR 182 at 184; Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [94] and [96] per Kirby J; Director of Public Employment (by her Agent the Commissioner of New South Wales Fire Brigades) v New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158; (2008) 180 IR 170 at [45]-[46]. The passage in Kucks cited by his Honour makes the point:
'It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading.'
23. These principles have subsequently been cited with approval by the Full Bench in State Transit Authority of New South Wales v Australian Rail, Tram and Bus Industry Union, New South Wales Branch, Bus and Tram Division [2014] NSWIRComm 41 and more recently by the Full Bench in Secretary of the Department of Transport (in respect of Roads and Maritime Services) v Construction, Forestry, Mining, and Energy Union, New South Wales Branch [2018] NSWIRComm 1038.
24. For completeness, we affirm these principles and apply them to the construction of the Status Quo Provision the subject of this appeal."
The respondent's Outline of Submissions dealt with the question of an Officer's headquarters in fairly short terms. It drew reference to cll 3.32 and 27 of the Conditions Award. It placed reliance on the reference to "centre(s)" in cl 3.32, contending that the definition "clearly accommodates the possibility of an officer having 'headquarters' that include more than one 'centre'". [8] The respondent concluded that:
1. the respondent is not required to assign each Officer to a single court/centre;
2. an Officer can be assigned to multiple courts/locations; and
3. an Officer assigned to a centre that is their headquarters is not entitled to an excess travel allowance under cl 27.
In an affidavit sworn on 22 March 2019 the Sheriff deposed as follows:
"29. At the [Joint Consultative Committee] meeting on 8 March 2018 … the movement of Sheriff's Officers between centres was discussed. I advised that Sheriff's Officers rostered at a satellite court, such as Port Kembla Court, should travel directly from home to that court and that if they attend their hub court first they would not be provided with transportation.
30. Using pool cars to travel short distances between hub and satellite courts unnecessarily prevents other staff from being able to use those cars to conduct fieldwork.
31. When Sheriff's Officers are rostered to work at a satellite court they are rostered to, and expected to, start their shift at the satellite court (and not their hub court) where reasonable, such as Broken Hill and Wilcannia. Where the officer needs to travel a significant distance to reach the satellite court a car is made available and, depending on the distance, accommodation arranged for the officer to stay overnight near the satellite court prior to the shift."
During the hearing I had the following exchange with Mr Easton, counsel for the respondent: [9]
"COMMISSIONER: In the analysis that you've just given me, there's no certainty at all as to when one or more courts will comprise the headquarters and when they will not.
EASTON: Well, the organisational units that they're in would, for example, have Campbelltown, Camden, Picton, Moss Vale, if someone is employed out of the Campbelltown hub and any of those within the hub there.
COMMISSIONER: And if I'm in Broken Hill, I can be expected to travel to Wilcannia or Wentworth and that's still part of my headquarters.
EASTON: You're going to be paid for it.
COMMISSIONER: Well, no, this is my question, Mr Easton. Why am I getting paid to go from Broken Hill - make it simple. Why am I getting paid to go from Wollongong to Kiama but not Wollongong to Port Kembla? What's the difference?
EASTON: The difference in terms of the interpretation of the award and how you would understand the clause - the term there for centre and headquarters is none. If you're engaged in the Wollongong hub, then as far as the award is concerned all four of those courts are all centres in which you work in the same as - but you're recognising that despite that you're only expected to travel to Kiama and Albion Park on paid time.
COMMISSIONER: For now.
EASTON: For now, yes.
COMMISSIONER: But what I'm hearing is that - so I'm clear, the hub and its satellites are the centres which comprise an employee's headquarters and whether or not an employee gets paid to travel to any of those satellites is largely at the discretion of the sheriff.
EASTON: For the purposes of the excess travel clause of the conditions award, yes.
COMMISSIONER: Thank you.
EASTON: Because it's not travelling to a location other than normal headquarters."
In its Outline of Supplementary Submissions the PSA made a number of factual contentions, including:
1. hub courts are where the Regional Management of the respondent are located. They are known as "Sheriff's Centres";
2. the hub courts provide the appropriate computer facilities for Officers to receive and send work-related emails, check their roster and log on their times. Only a few satellite courts provide these facilities;
3. satellite courts usually do not have shower facilities or proper change rooms for Officers;
4. satellite courts do not operate every day. They are part-time courts; and
5. no Officer is permanently rostered to work at a satellite court.
There was no evidence adduced to support these contentions. In respect of the contention at [48(4)] above the submissions are inconsistent with the PSA's evidence. [10] However, the assertions were not directly contradicted by the respondent.
The PSA further contended that assigning an Officer to more than one court as their "headquarters" would have the effect of nullifying, in relation to that Officer, the applicability of certain provisions of the Conditions Award including those referred to at [11] above. To so deprive an Officer of travel and other allowances should only be achieved by a specific provision in the Sheriff's Award. There is no such provision.
The PSA further submitted as follows: [11]
"JALOUSSIS: … So the rosters are prepared in relation to those employees at the Wollongong or the hub court and that roster will provide for them to also some work at some of the satellite courts. But it's not a roster that's prepared for employees who are stationed at Kiama or stationed at Port Kembla or Albion Park. They're stationed at Wollongong. That's where the sheriff's office is. That's where their station is and it's from there that they then are required to travel to work at any of the satellite courts. On that basis, Wollongong is their headquarters, in my submission."
Distilled to its essence, the contest between the parties came down to this: the PSA contended that the "headquarters" for an Officer is their hub court (and only their hub court), while the respondent contended that it is the hub itself (comprising the hub court and its satellite courts).
As stated above, there is a wide variance across New South Wales in the number of satellites to hubs and in the distances between them. For example, the CBD hub court appears to have five satellites, four of which are within a radius of six kilometres. The Dubbo Court has 17 satellites, four of which are at a distance between 300 and 400 kilometres from Dubbo. The distances between the Wollongong Court and those at Port Kembla, Albion Park and Kiama are approximately 10, 23 and 34 km respectively.
On its face, the definition of "headquarters" in clause 3.32 of the Conditions Award, through its use of "centre(s)", clearly allows for the possibility that an employee's headquarters may comprise more than one location. However, the PSA argued that as the Conditions Award applies to all public sector employees, the definition needs to be read down or modified in its operation to Officers so as to, in effect, provide that an Officer's headquarters must be a single centre only.
I do not accept this construction, for two reasons. Firstly, there is an insufficient evidentiary basis on which to find that for all Officers it could or should never be the case that their headquarters comprise more than one court. Secondly, cl 5 of the Sheriff's Award provides that the Conditions Award is to apply to Officers. It expressly excludes the operation of two provisions of the Conditions Award. The parties have clearly turned their mind to how the Conditions Award is to be varied in its application to Officers. If it had been intended to modify the definition of "headquarters" in its application to Officers, in the manner contended by the PSA, one would have expected this to have been done. With the parties having apparently elected not to do so, cl 3.32 of the Conditions Award must be read in accordance with its terms.
That is not, however, the end of the matter. I also have a great deal of difficulty with the position advanced by the respondent. This difficulty is highlighted by asking, in reference to the Sheriff's evidence at [31] of her affidavit of 22 March 2019 (reproduced at [46] above), when would it be "reasonable" to expect an Officer to start their shift at the satellite court and not the hub court? Further, who will decide what a "significant distance" is in order to determine whether a car will be provided (and possibly excess travel time paid)? In the Wollongong hub, different arrangements are in place for Officers who are rostered to work at Albion Park and Kiama than for those rostered to work at Port Kembla. What remains unexplained is why a distance of approximately 10 kilometres is apparently not regarded as "significant", while 23 kilometres is.
As I apprehend the respondent's submission, an Officer's headquarters comprises the entire hub in which they are employed. An Officer rostered to work at a satellite court would only have entitlements to compensation under cl 26 or excess travelling time under cl 27 of the Conditions Award if the Sheriff, in her discretion, decided to confer those entitlements on them. The questions posed at [56] above would be entirely for her to answer. These are not propositions which can be accepted.
The clear intent of the Conditions Award is that an employee has a "base". If they are required to work away from that base the employer must compensate them for any additional time or expenses that are entailed. Nothing in the language of the Conditions Award properly allows for a construction in which an employer can, for all intents and purposes, make payment of any compensation entirely a matter of discretion.
In circumstances where the proximity between a hub court and the relevant satellite court or courts is such that there will be no or an insignificant impact on an employee's travel time and expenses in getting to and from work, it is reasonably open to conclude that for the relevant Officer's headquarters might comprise the hub and satellite courts. Such a conclusion is not so readily available when the extra travel time and expenses would be significant.
There are other factors that might have a bearing on which of the hub court and satellite courts constitute an Officer's headquarters. One is the frequency with which an Officer is rostered to work at a particular satellite court. While the geographical proximity of the satellite court to the hub court will be a more material consideration, if the distance is not significant the frequency of an Officer being rostered at a satellite court might support the argument that his or her headquarters include the satellite court.
Another factor might be the lack of amenities or facilities at the satellite court, which presumably will be available at the hub court. This issue featured significantly in the evidence. Assuming once again that there is no great distance between the two locations, the lack of appropriate amenities at the satellite court might argue against that court being part of the Officer's headquarters.
I am left in the position of not being satisfied with the construction of cl 3.32 offered by either party. I do not consider that the Conditions Award requires that the "headquarters" for an Officer be a single location, being the hub court. At the same time, the facts do not support a finding that in every case the hub (the hub court and its satellites) is properly to be regarded as the headquarters for an Officer. The reality is that the question can only be determined on a hub-by-hub basis.
Whether one or more courts will comprise an Officer's headquarters will depend on all of the issues already identified: proximity between the hub and the satellite court; any additional time that will be required by the Officer to travel to the satellite court above that which would normally be travelled to the hub court; whether in travelling to the satellite court the Officer will incur any additional fares or expenses; amenities at the satellite court; and, the frequency with which the Officer is rostered to work at each of the hub court and the satellite court.
[6]
Is a direction to store Appointments and ballistic vest at home reasonable?
Under Question for Determination 3(b) the Commission is asked to determine whether it is reasonable for an Officer to be directed to keep his or her Appointments and ballistic vest at home overnight, in the storage case supplied by the Sheriff. This issue also has some bearing on Question for Determination 3(a).
On the evidence and submissions presented, the issue extends beyond a direction regarding the overnight storage of Appointments and ballistic vests in Officers' homes. It includes being required to travel with them to and from their home and the hub or satellite court. In either situation, the Officer would have available a storage case as described at [24] above. (For convenience I will refer to any direction to an Officer to travel with or store Appointments and ballistic vests as a "Direction".)
There was no dispute that a Direction would be lawful. This was conceded in submissions filed by the PSA and confirmed by Mr Jaloussis during the hearing. [12]
The respondent raised the question of the possible application of the Work Health and Safety Act 2011 (NSW), although the PSA did not expressly place reliance on it. In light of the concession that a Direction would be lawful it seems unnecessary to traverse the potential implications of the Work Health and Safety Act.
The PSA's position is summarised in its Outline of Supplementary Submissions as follows:
"35. A direction issued to Sheriff's Officers to take their appointments home may be lawful, but is not reasonable, as it has the potential to place at risk the safety and welfare of persons who are not employees of the Respondent, namely, the Officer's family.
…
42. It would be in the public interest and in the interests of an Officer's family's safety and welfare that appointments not be taken home at night.
…
44. Therefore, the direction to take appointments home is just a cost-saving measure, rather than good policy. In doing so, it places others' safety at risk. On that basis, although it may be a lawful direction, it is not unreasonable."
Mr Belavic deposed: [13]
"I never liked to carry the appointments home as I believed that I could be a target from criminal elements."
Mr Jaloussis described the Direction as obliging Officers to bring "bait" into their homes. [14]
There is no evidence of Officers' homes having been the target of "criminal elements". The only evidence of Appointments having been stolen came from the Sheriff. She was aware of only one instance of it happening and that involved theft from the personal vehicle of an Officer. [15]
The Sheriff also deposed to consultation regarding travelling with and storage of Appointments and ballistic vests that occurred through the Office of the Sheriff's Joint Consultative Committee ("JCC") between September 2017 and June 2018. [16] The JCC comprises the Sheriff, management representatives, Officers and a PSA representative. Minutes of the meetings of the JCC during that period suggest that the only relevant concern raised by the PSA and Officers was whether the carriage of Appointments by an Officer was compliant with the Weapons Prohibition Act. There is no evidence of Officers raising concerns regarding their own or their family's safety if Appointments are stored at home.
As the PSA now accepts that a Direction would be lawful, it can be assumed that any concerns held by the PSA that the Direction would not be compliant with the Weapons Prohibition Act have been allayed.
There is also no evidence of the PSA or Officers challenging the SOPs on the basis of any safety or security concerns. I note in this regard the Sheriff's evidence reproduced at [39] above.
Prior judicial consideration of what will amount to a "lawful and reasonable direction" has generally occurred in the context of litigation involving termination of employment. That is, whether at common law or under unfair dismissal legislation an employee's failure to follow a lawful and reasonable direction provided proper grounds for their dismissal. In Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 at 73-78 Hungerford J examined a number of these authorities.
In R v Darling Island Stevedoring and Lighterage Co Ltd; Ex p Halliday and Sullivan (1938) 60 CLR 601 at 621-622 Dixon J stated as follows:
"If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable. Accordingly, when the award was framed, the expression 'reasonable instructions' was adopted in describing the employees' duty to obey. But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled. When an employee objects that an order, if fulfilled, would expose him to risk, he must establish a case of substantial danger outside the contemplation of the contract of service." (Footnotes omitted)
The Questions for Determination call for a response that will apply to all Officers in all circumstances. There is no evidence that the Direction would expose Officers to a material risk. Mr Belavic's concern about "criminal elements", which is the only evidence before the Commission on this point, does not provide a sound footing on which to find that the Direction would expose Officers to "substantial danger outside the contemplation of the contract of service".
In many respects the submissions advanced on behalf of the PSA on this point asked the Commission to accept that the world is becoming a more dangerous place. As much as I might regretfully do so, it is not enough. I accept the submissions made by Mr Easton for the respondent that there is no proper evidentiary foundation upon which I could determine that the Direction would not be a safe one to make. [17]
Further, on the evidence before me I have no basis on which to find that the Direction would not be reasonable.
[7]
Answers to Questions for Determination
Based on the foregoing discussion, the first two Questions for Determination can be reframed as follows: Under the Conditions Award, must the headquarters for an Officer be a single location? If so, must that location be the hub court?
For the reasons already provided, the answer to both questions is no.
Whether factually the headquarters for an Officer is a single location being the hub court will depend on the circumstances. It may well be the case. However, under the Conditions Award it need not always be the case.
The third Question for Determination has two parts. The answer to question 3(b) largely answers question 3(a).
In answer to question 3(b), on the evidence before me I have no basis on which to find that the Direction would not be reasonable.
If the Direction is reasonable an Officer could not insist on storing his or her Appointments and ballistic vest overnight at the hub court and claim the extra time involved in attending the hub court before and after their rostered work at the satellite court. On the assumption that the Direction is reasonable, the answer to question 3(a) is no.
I allow for the theoretical possibility that in a given circumstance the Direction might not be reasonable. In that situation, any arrangements that would need to be made to allow the Officer to attend the satellite court with his or her Appointments and ballistic vest, and any entitlements which may then arise under the Conditions Award, would be dictated by the circumstances.
On the fourth Question for Determination, I observe the use of the words "on the following day". No particular emphasis was placed on these words during the hearing, and I do not comprehend the question as anticipating only those situations in which an Officer receives less than 24 hours' notice of the requirement to work at a satellite court. Mr Clark deposed that rosters are prepared eight weeks in advance, while Mr Belavic stated that they were prepared at least monthly. In either case, no arguments were advanced about employees receiving short or insufficient notice of their need to report for duty at a satellite court.
I have approached the question as referring to any situation in which an Officer is directed to work at a satellite court.
In light of the matters dealt with earlier in this judgment, a yes or no answer to this question is not possible. Whether an employee is entitled to any payment under cl 26.1 of the Conditions Award (or cl 27, or any other provision) depends on what constitutes the headquarters of the Officer in their circumstances. Being rostered to work at a satellite court would enliven an entitlement under cl 26.1, and under any other relevant provision of the Conditions Award, if the satellite court does not form part of the Officer's headquarters.
[8]
Non-publication order
During the proceedings Mr Belavic twice stated his residential address. In light of the subject matter of these proceedings I enquired of the parties whether it would be appropriate for an order to be made under s 164A of the Act to prevent the publication of Mr Belavic's address. The parties had no objection and on that basis I made such an order.
[9]
Recommendations and orders
On the evidence presented, there is no apparent certainty as to when the respondent would consider that an Officer required to work at a satellite court would be entitled to compensation under cl 26 or excess travelling time under cl 27 of the Conditions Award. As already stated, this is not a matter entirely at the discretion of the Sheriff but requires the proper application of the Conditions Award to the relevant circumstances.
I recommend that the respondent develop guidelines to determine an Officer's "headquarters" for each hub. This may comprise only the hub court, or include some or all of the satellite courts, depending on the circumstances. The guidelines should have regard to and be consistent with the matters set out above regarding the interpretation of cl 3.32 of the Conditions Award.
The guidelines should take into account, in particular, the proximity between the hub and the satellite court; any additional time that will be required by an Officer to travel to the satellite court above that which would normally be required to travel to the hub court; whether in travelling to the satellite court the Officer will incur any additional fares or expenses; amenities at the satellite court; and, the frequency with which the Officer is rostered to work at each of the hub court and the satellite court.
I further recommend that in developing the guidelines the respondent consult with its Officers and the PSA, through such mechanisms as may be appropriate, which might include but need not be limited to the JCC.
I make the following orders:
1. The matter is adjourned to 27 September 2019.
2. Liberty is reserved to the parties to have the matter re-listed on reasonable notice.
3. If that liberty is not exercised by 27 September 2019 the matter will be closed administratively.
Damian Sloan
Commissioner
[10]
Endnotes
Transcript p 26 (27-28)
Exhibit A1 at [7]
Tcpt p 9 (48-49)
Tcpt p 32 (5)
Exhibit A1 at [40]
Tcpt p 73 (36-49)
Tcpt p 60 (38-47)
Outline of the Secretary's Submissions at [20]
Tcpt pp 80 (23) - 81 (12)
Exhibit A7 at [13]
Tcpt p 67 (39-46)
Tcpt p 21 (30-31)
Exhibit A4 at [(c)]
Tcpt p 74 (25)
Tcpt p 60 (3-15)
Exhibit R2 at [21]-[25]
Tcpt p 87 (47-48)
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: 30 August 2019
Parties
Applicant/Plaintiff:
Public Service Association and Professional Officers' Association Amalgamated Union of NSW
Respondent/Defendant:
Industrial Relations Secretary on behalf of the Department of Justice