DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

The Police Federation of Australia (Victoria Police Branch)
v
Victoria Police
(C2021/1534)

Appeal against decision [2021] FWC 1011 of Deputy President Colman at Melbourne on 1 March 2021 in matter number C2020/6810.

Introduction and factual background

[1] The Police Federation of Australia (PFA) had lodged an appeal pursuant to s 604 of the Fair Work Act 2009 (FW Act), for which permission is required, against a decision of Deputy President Colman made on 1 March 2021 1 in respect of an application made by the PFA to deal with a dispute pursuant to the dispute resolution procedure in clause 10 of the Victoria Police (Police Officers, Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 20192 (2019 Agreement). The dispute, involving members of the Victoria Police Branch of the PFA and the Victoria Police, concerned whether Victoria Police had the capacity to transfer four officers holding positions in its Supervision Order Specialist Response Unit (SOSRU) who held “maximum time in position” (MTIP) positions. The Deputy President dismissed the PFA’s application on the basis that clause 10 of the 2019 Agreement did not empower him to deal with the dispute. He reached this conclusion on the bases that the dispute did not concern a matter arising under the 2019 Agreement and that, in any event, the dispute was the subject of express exclusions in clause 10.2. The PFA contends in its appeal that the Deputy President’s conclusions in this respect were in error.

[2] The factual background to the proceedings before the Deputy President was non-contentious. The SOSRU (initially named the Sex Offender Specialist Response Unit and bearing the same acronym) was established in 2015. The positions in the new unit were not advertised nor was a selection process conducted; rather, officers were transferred to the SOSRU pursuant to reg 11 of the Victoria Police Regulations 2013 (Vic) (VP Regulations) made pursuant to the Victoria Police Act 2013 (Vic) (VP Act). Investigator positions in the SOSRU were designated as MTIP positions for reasons, among other things, of psychological health and safety.

[3] Three of the four officers in question were transferred to the SOSRU in the period November-December 2015. The fourth officer was transferred on 9 May 2017. Throughout this period, the Victoria Police (Police Officers (Excluding Commanders), Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2015 3 (2015 Agreement) was in operation. The four officers’ complaint is that they were not told that their positions in the SOSRU were subject to a five-year MTIP period until 5 April 2018 and, if they had been told this at the time they were to have been transferred, they would have objected. The PFA wrote to Victoria Police on 4 May 2018 on behalf of the four officers contending that the MTIP status of their positions should be revoked on the basis that the requirement in clause 19.7 of the 2015 Agreement that any MTIP period must be specified in the advertisement for the position had not been met because the positions had not been advertised. In its response of 9 June 2018, Victoria Police contended in substance that the requirement in clause 19.7 of the 2015 Agreement was not applicable because the four officers had been transferred pursuant to reg 11 of the VP Regulations, meaning that no advertisements for the positions were required and therefore that clause 19.7 was inapplicable.

[4] The PFA subsequently filed an application for the Commission to deal with a dispute concerning the MTIP status of the positions of the four officers on 13 June 2019 pursuant to the dispute resolution procedure of the 2015 Agreement. The Commission conducted a conference in relation to the dispute. However, the PFA did not take the matter to arbitration, and the file was closed. On 27 December 2019, the Victoria Police confirmed that it was intended that the officers be transferred once their MTIP periods had expired.

[5] On 1 April 2020, the 2019 Agreement commenced to operate. On 21 August 2020, the four officers were advised that they would be transferred out of their positions on the fifth anniversary of their commencement consistent with the MTIP periods of their positions. This position was confirmed in correspondence from Victoria Police to the PFA dated 2 September 2020. On 7 September 2020, the PFA filed its application under the 2019 Agreement for the Commission to deal with the dispute concerning the positions of the four officers. The relief it sought in the application was:

“•  That the Commission direct that Victoria Police cease all actions to transfer the members out of their positions at SOSRU.

•  That the Commission direct that Victoria Police provide the four members with an acknowledgement that MTIP will not be applied to their position[s].”

Relevant provisions of the 2015 Agreement and the 2019 Agreement

[6] As earlier stated, the transfer of the four officers to the SOSRU occurred at a time when the 2015 Agreement was in operation. MTIP positions were dealt with in clause 15 of the 2015 Agreement and, relevantly, clauses 19.7-19.8 provided:

19.7 A maximum time in position period must be specified in the advertisement and may be set:

(a) in exceptional circumstances where the duties are highly sensitive, involve high risk to security or safety, or are difficult to fill; or

(b) where the position requires contemporary operational experience, knowledge or expertise; or

(c) where the work is such that extended periods of time in that position could adversely impact on the individual or the organisation.

19.8 Maximum time in position requirements will be specified on the relevant position description and can only apply after approval by the head of the Human Resource Department.

[7] These provisions were the subject of modification in the 2019 Agreement. Clauses 19.7-19.9 of the 2019 Agreement provide:

19.7 Maximum time in position period can only apply if it is specified in the advertisement. If a position is not advertised, maximum time in position can only apply if the employee transferred into the position is advised of the maximum time in position requirement and acknowledges it in writing prior to the transfer.

19.8 Maximum time in position may be set:

(a) in exceptional circumstances where the duties are highly sensitive, involve high risk to security or safety, or are difficult to fill; or

(b) where the position requires contemporary operational experience, knowledge or expertise; or

(c) where the work is such that extended periods of time in that position could adversely impact on the individual or the organisation.

19.9 Maximum time in position requirements will be specified on the relevant position description and can only apply after approval by the head of the Human Resource Department.

[8] Clause 19.10 of the 2019 Agreement provides for what occurs when the MTIP period for a position is reached:

19.10 Other than as provided for in clause 19.12 on reaching time in position, the owner will be required to vacate the position and will be unattached and declared surplus in accordance with clause 23. Where an employee has not been required to vacate their position 6 months after reaching their maximum time in position, they will not be required to vacate the position at a later date on the grounds of their having reached maximum time in position.

[9] A similar provision existed in the 2015 Agreement, except that the exception operating by reference to clause 19.12 is new to the 2019 Agreement. Clause 19.12 provides for the renewal of a MTIP period subject to certain criteria being met, but is not relevant to the present matter.

[10] Clause 15.7 of the 2019 Agreement provides that employees who are unattached from their position will be declared surplus and placed in accordance with clause 23. Clause 23 provides a procedure for the placement of surplus employees.

[11] Clause 10.2 of the 2019 Agreement sets out the matters which may be the subject of the dispute resolution procedure (including, if necessary, arbitration by the Commission pursuant to clause 10.6). It provides:

10.2 With the exception of a matter contained in clause 11 or where a statutory right of review exists under the VP Act, if a dispute arises about any matter arising under this Agreement or the National Employment Standards (including s 65 of the FW Act) the parties to the dispute will attempt to resolve the dispute at the workplace level if appropriate.

[12] Clause 10.1 provides that, for the purpose of the dispute resolution procedure in clause 10, a “party” may include the PFA. Clause 11 provides for a procedure whereby certain disputes may be determined by the Police Registration and Services Board (PRSB). This includes “disputes in relation to … a directed placement of a surplus employee in accordance with clause 23” (clause 11.1(d)).

[13] It is not in issue that the words “statutory right of review … under the VP Act” in clause 10.2 of the 2019 Agreement refers to the scheme for review of decisions established by Div 2 of Pt 8 of the VP Act. Section 146(1) of the VP Act prescribes which decisions concerning police officers are reviewable under this scheme, and this includes (in paragraph (h)) a directed transfer of an officer pursuant to s 35 or (in paragraph (i)) any other compulsory transfer.

The decision

[14] The Deputy President commenced his consideration of the dispute dealing with Victoria Police’s contention that the Commission had no jurisdiction to deal with the dispute. He began by stating that, in his view, the PFA had mischaracterised the dispute, in that it did not concern the imposition of MTIP by Victoria Police as the PFA contended. The Deputy President said that what was to occur in relation to the four officers, namely their transfers out of their positions, was rather a consequence of the earlier attachment of MTIP to those positions. 4 The Deputy President also rejected the PFA’s contention that the dispute was about whether it was permissible for Victoria Police to give effect to the MTIP of the four officers’ positions on the basis that clause 19.7 of the 2019 Agreement regulated the manner in which MTIP requirements imposed under the 2015 Agreement would be treated under the 2019 agreement. Although, the Deputy President said, arguments about the meaning of clause 19.7 would go to the merits of the PFA’s application rather than the Commission’s power to hear it, “it was nevertheless relevant for the Commission to consider, in assessing the jurisdictional objection, whether an interpretative argument put by the PFA was plausible, because if it was not, there could be no genuine dispute about the matter”.5 The Deputy President rejected the PFA’s argument as “untenable” because:

•  the use of the present tense in clause 19.7 of the 2019 Agreement meant that, on its ordinary grammatical reading, it connoted prospective rather than retrospective operation; 6

•  had the new MTIP rules in the 2019 Agreement been intended to apply to MTIP periods that were imposed before the 2019 Agreement commenced, clause 19.7 would have used the past tense and, had it been intended to invalidate past MTIP arrangements, one would have expected the clause to have said so expressly; 7

•  there was no evidence of common intention between the parties that the new rules would apply retrospectively, and the PFA’s contention that clause 19.7 was intended to address the circumstances of the present dispute was no more than its subjective intention and could not displace the plain meaning of the provision; 8

•  the PFA’s contention that clause 19.7 did not have work to do until 2023 (when a MTIP period established under the 2019 Agreement would expire) if it is not interpreted to apply to MTIP imposed before the 2019 Agreement commenced operation is wrong because, since the commencement of the 2019 Agreement the provision has been “hard at work” preventing Victoria Police from setting a valid MTIP unless it complies with the new rules; 9

•  the PFA’s contention that the effect of Victoria Police’s argument was that the Commission had no jurisdiction to deal with disputes which had their origins in times before the commencement of the 2019 Agreement was not accepted because whether disputes about or connected with past matters fall within the scope of a dispute resolution procedure will depend on the terms of the provision and the facts of the case, and the 2019 Agreement did not expressly allow for disputes about matters that arose under earlier agreements to be determined by the Commission; 10 and

•  clause 19.7 was not “intrinsically retrospective” in the nature of the conditions it imposed. 11

[15] The Deputy President also concluded that, even if the dispute had been one related to a matter arising under the 2019 Agreement, it would fall within both of the exceptions in clause 10.2. First, he said, it was about a matter contained in clause 11, which covered the directed placement of an officer which would follow upon an officer reaching the end of a MTIP process and becoming surplus. The PFA’s contention that clause 11 does not specifically refer to a dispute about MTIP, and that this is distinct from any dispute that might later arise about directed placements or transfers of officers, involved an “artificial distinction” since the four officers were concerned about their transfer out of the SOSRU and indeed asked the Commission to direct Victoria Police not to transfer the officers. 12

[16] Second, the Deputy President considered that the dispute also fell within the second exception in clause 10.2 of the 2019 Agreement, namely the availability of a statutory right of review under s 146(1) of the VP Act. The Deputy President said that nothing in the 2019 Agreement curtailed the power to transfer officers under s 33 of the VP Act or the ability of affected officers to ask the PRSB to review a transfer decision, and the PFA’s distinction between a dispute about the application of MTIP and the transfer that follows it is one without substance. 13

[17] On the above bases, the Deputy President determined that the dispute was not one which fell within clause 10.2 of the 2019 Agreement and the Commission had no authority to arbitrate it, and the Deputy President accordingly dismissed the PFA’s application. 14

Appeal submissions

[18] The PFA’s appeal contains seven grounds of appeal, but they essentially involve two contentions of error arising from the Deputy President’s determination that the Commission did not have jurisdiction to deal with the dispute the subject of the PFA’s application. The first is that the Deputy President erred in concluding that the dispute was not about a matter arising under the Agreement such as to bring it within the scope of clause 10.2 of the 2019 Agreement. The second is that the Deputy President erred in respect of his alternative conclusion that the dispute fell within the exceptions stated in clause 10.2.

[19] In respect of the first contention of error, the PFA submitted that the Deputy President had mischaracterised the dispute. The PFA submitted that the correct question was whether the four officers had, for the purpose of clause 19.10, reached MTIP so as to be required to vacate their positions and trigger the placement process for surplus employees in clause 23. The parties disagreed about whether clause 19.7 of the 2019 Agreement operated to affect the MTIP status of the four officers, and this was a dispute about a matter arising under the 2019 Agreement. The Deputy President’s construction, it was submitted, leaves the parties’ disagreement unresolved by the method they selected to settle a dispute they are unable to settle themselves, and this outcome promotes industrial disharmony inconsistent with the industrial purpose of the 2019 Agreement generally and clause 10 specifically.

[20] In relation to the Deputy President’s construction of clause 19.7, the PFA submitted that he erred in placing great significance on the use of the present tense in the provision. It submitted that:

•  clause 19.7 is one of a suite of provisions that regulates the subject of MTIP;

•  clause 19.1 stipulates that employees are required to “own” their positions for two years, and the assumption of clauses 19.7 and 19.10 is that the Victoria Police is entitled to set a maximum time for an “owned” position;

•  clause 19.10 provides that “on reaching” this maximum, an affected employee may be placed by means of the process in clause 23, but this pathway is only open if the conditions in clause 19.7 are met, and there can be no maximum time to reach if a maximum time cannot be applied to the relevant positions;

•  when the components of clause 19 are read together as a whole, it is apparent that the first sentence of clause 19.7 simply poses a factual question at a point in time, namely when it is necessary to determine if the affected employees must vacate their positions and be placed;

•  clause 19.7 is simply concerned with the existence, or non-existence, of a state of affairs, and the use of the present tense in the first sentence does not connote or justify any allocation of those affairs between the current and the former enterprise agreements;

•  the Deputy President’s emphasis on the use of the present tense in clause 19.7 unduly narrows the protection which clause 19.7 confers and limits dispute resolution, and neither is necessary on the proper construction of the term;

•  the second sentence of clause 19.7 is a reform which addresses directly the factual position of the affected police members, and alters the position under the 2015 Agreement by conferring additional protection on employees from unadvertised positions with MTIP periods;

•  the construction of clause 19.7 advanced by the PFA did not give it a retrospective effect, but rather caused it to prevent officers becoming unattached under the 2019 Agreement unless the conditions in the clause were met;

•  the expansion of clause 19.7 to the very circumstances that resulted in the four officers failing to obtain protection under the predecessor clause in the 2015 Agreement is a compelling reason to strive for a meaning that gives effect to its evident purpose; and

•  the positions of the four officers were not MTIP positions under the 2015 Agreement because the requirement for positions to be advertised in clause 19.7 of that agreement was not complied with, so that the status quo in place at the time the 2019 Agreement commenced operation and to which clause 19.7 of the 2019 Agreement applied was that the four officers did not hold MTIP positions.

[21] As to its second contention of error, the PFA submitted that if there is a “matter arising” under clause 10.2, it is because there is a question about whether the four officers hold positions subject to MTIP. If they are not subject to MTIP, clause 23 is not engaged and there cannot be a directed placement “in accordance with clause 23” which gives rise to the right of appeal in clause 11.1(d). Alternatively, it was submitted, if the positions are subject to a MTIP period, clause 11.1(d) is still not engaged because it only applies to action taken under clause 23 to place an employee. The dispute is not concerned with the situation, subsequent to an employee being required to vacate their office under clause 19.10, of being subject to a directed placement under clause 23.

[22] The PFA submitted that permission to appeal should be granted on the basis that, having regard to the errors it identified, the decision manifests an injustice. The decision, it submitted, was not discretionary in nature but concerned objective questions of law about which the Deputy President was either correct or incorrect, so that if the Full Bench disagreed with the Deputy President, the public interest was necessarily enlivened and permission must be granted under s 604(2) of the FW Act. It submitted that the appeal should be upheld and the decision quashed, and the Full Bench should proceed to arbitrate the dispute itself or refer it to another member of the Commission to deal with in accordance with the Full Bench’s reasons. The relief it now sought was a finding that, on the proper construction of clause 19.7 of the 2019 Agreement, no MTIP period applied to the SOSRU positions held by the four officers.

[23] Victoria Police submitted at the outset that, in respect of the application for permission to appeal, regard must be had to the limits of the industrial relations power conferred by the State of Victoria pursuant to the Fair Work (Commonwealth Powers) Act 2009 (Vic) (Referral Act) – namely that, in respect of law enforcement officers, the referral relevantly excluded “matters pertaining to the transfer from place to place or position to position…of law enforcement officers” (s 5(2)(b)).

[24] In respect of the PFA’s first contention of error, Victoria Police submitted that the Deputy President correctly found that the dispute was not a matter arising under the 2019 Agreement pursuant to clause 10.2. It was submitted that the Deputy President correctly characterised the dispute as being one about Victoria Police’s proposal to transfer the four officers out of their positions due to the operation of MTIP provisions that were attached to their positions before the commencement of the 2019 Agreement. The PFA had conceded during the hearing before the Deputy President that the fundamental point in contest was whether or not the MTIP was properly imposed at the time and, to the extent that the PFA now sought to allege that the Deputy President mischaracterised the dispute, it ought not be permitted to resile from that concession. It was further submitted that the Deputy President’s finding that there was no matter arising under the 2019 Agreement was consistent with the characterisation of the dispute at first instance, and referred to the PFA characterising the dispute as one involving Victoria Police’s proposed action of “implementation of MTIP” and its contention that clause 19.7 imposed a “bar” or “imposition” upon this.

[25] Victoria Police submitted that the Deputy President’s interpretation of clause 19.7 as untenable was “reasonably open” to him for the reasons he gave and disclosed no appealable error. It was submitted that:

•  contrary to the PFA’s submission, the Deputy President addressed the “reform” aspect of the second sentence of clause 19.7, but found that it has a plain meaning, did not apply to the past, and there was no evidence of common intention that the new rules would apply retrospectively;

•  there was no evidence that the parties intended that clause 10.2 apply retrospectively to resolve a dispute which arose under the 2015 Agreement or that MTIP arrangements made while the 2015 Agreement was in operation were invalid; and

•  considerations of “industrial harmony” could not override the plain language drafting of the 2019 Agreement.

[26] Victoria Police submitted in relation to the PFA’s second contention of error that the dispute was “in relation to” the matter in clause 11(1)(d), namely the “directed placement of a surplus employee in accordance with clause 23”, because an officer who reaches MTIP must vacate their position and will become unattached and declared surplus in accordance with clause 23. The Deputy President’s conclusion that a directed placement had not yet arisen was reasonably open to him having regard to the concern of the four officers about their transfer out of the SOSRU and the claim for relief to prevent this, the sufficiency of a nexus between clauses 19 and 23, and the consistency between the application of the exclusion and the limitation upon the referral of Victoria’s industrial relations powers to the Commonwealth. It was also submitted that the four officers had access to the statutory right of review under the VP Act for the reasons stated by the Deputy President, and his conclusion in this respect was also consistent with the terms of Victoria’s referral of industrial relations powers.

[27] It was submitted that the grant of permission to appeal would not be in the public interest and was not warranted because:

•  the parties failed to arbitrate the dispute under the 2015 Agreement when they had the opportunity;

•  the parties failed to take steps to preserve the original dispute under the 2019 Agreement;

•  the four officers had a statutory right of review that would deal with the essence of their concerns;

•  there was no evidence that the officers would have sought to challenge their transfer into the SOSRU in any event;

•  it is in the public interest that law enforcement officers that form part of specialist units dealing with sex offenders are subject to rotation for occupational health and safety and risk mitigation reasons; and

•  there was no evidence of similar disputes within Victoria Police.

Developments in the dispute since the decision

[28] At the hearing of the appeal on 17 May 2021, we admitted into evidence, without objection, a witness statement made by Natasha Ilievski dated 13 May 2021 and tendered by Victoria Police. Ms Ilievski is the Portfolio Manager - South East Portfolio within the Recruitment, Deployment and Workplace Relations Division at Victoria Police. Ms Ilievski said in her statement, relevantly, that three of the four officers in question had been successful in obtaining alternative positions outside the SOSRU, and stated:

“These Members have not been subject to a compulsory transfer process by Victoria Police, and have either been promoted or successful in applying for another position outside of the SOSRU of their own initiative.”

[29] On 7 June 2021, with leave, Victoria Police filed a supplementary witness statement made by Ms Ilievski which stated that the fourth officer remaining unattached had applied for and obtained a position outside the SOSRU. Ms Ilievski also confirmed that the positions of the four officers in the SOSRU had always been subject to a MTIP period and that this was specified in the position descriptions at the relevant time.

[30] In response to this witness statement, and with leave, the PFA filed a witness statement made by Chris Kennedy, the Industrial Relations Manager of the Victorian Branch of the PFA. In his statement, Mr Kennedy identified the very limited areas within Victoria Police in which MTIP has been typically and historically applied. He referred to the history of industrial regulation of MTIP through enterprise agreements since 2001, and made reference to some instances of actual or potential disputation concerning the use of MTIP. He said:

“I am concerned that Deputy President Colman’s jurisdictional decision creates uncertainty about whether an officer who was transferred or took up an unadvertised position during the life of the 2015 EA is able to raise a dispute at all under clause 10.1 of the Victoria Police (Police Officers, Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2019 (the 2019 EBA) about a later decision by Victoria Police to apply MTIP then enforce the period, with the result that the member is subject to loss of the position and redeployment.

I am also concerned that for operational officers transferred into positions that Deputy Colman’s decision, including that part of his decision about the exceptions referred to in clause 10.1 of the 2019 EBA, will preclude officers and the Association from having recourse to the Commission if Victoria Police later informs an officer that MTIP applies to the position they were transferred into and/or seeks to enforce the MTIP with the result that the officer is subject to loss of the position and redeployment.”

[31] Mr Kennedy also said that two of the four officers had informed him that the application of MTIP to their positions in the SOSRU had caused them to look for other roles in the Victoria Police.

[32] The parties filed, with leave, further written submissions concerning these factual developments. Victoria Police submitted that the dispute was no longer live and to grant permission to appeal would lack utility. It rejected the proposition that the dispute was a generalised one about the construction of clause 19.7 divorced from the facts and circumstances of the four particular members, and submitted that the Commission should not grant permission in order to give what would amount to an advisory opinion concerning the meaning of clause 19.7. Further, it submitted, there remained no “matter” in dispute which enlivened the Commission’s primary arbitration powers.

[33] The PFA submitted that the “matter arising under this Agreement” was, and remained, a disagreement between the PFA and Victoria Police about the meaning and operation of clause 19.7 of the 2019 Agreement, and that the treatment of the four officers exposed the disagreement but does not define it. The dispute, it was submitted, has not been rendered abstract or hypothetical because the Victoria Police ultimately succeeded in severing the four officers from their position by treating them as though they were unattached and hence liable to be redeployed. The PFA submitted that the Deputy President’s decision stands, for all practical purposes, as the Commission’s view of both the proper construction of clause 19.7 and its authority under s 595(3) in respect of all employees made subject to the consequences of unattachment as a result of a fixed term specified other than by advertisement during the currency of the 2015 Agreement. This should be rectified, it was submitted, by the determination of the appeal, particularly as Mr Kennedy’s witness statement supports the possibility of further disputation on the same or similar subject. Further, the four officers were and remain prejudicially affected by Victoria Police’s actions, and upholding the appeal and settling the dispute in the manner contended for by the PFA would vindicate the position of the PFA and its members.

Consideration

[34] We respectfully disagree with the Deputy President’s conclusion that the Commission had, at the time of his decision, no authority to arbitrate the dispute the subject of the PFA’s application. The PFA’s application to the Commission was prompted by Victoria Police’s confirmation in September 2020 that it would treat the four officers as unattached and surplus and subject to the redeployment process once they had completed their five-year MTIP periods. The basis upon which it intended to do this was clause 19.10 of the 2019 Agreement, which required an officer in a position the subject of a MTIP period to vacate the position when the MTIP position expired and to be subject to the redeployment process in clause 23. The PFA contended at all relevant times that clause 19.10 did not apply to the four officers because the relevant effect of clause 19.7 was that they could not, under the 2019 Agreement, be treated as subject to any MTIP period. This meant that there was a dispute between the PFA and Victoria Police about “a matter arising under this Agreement”, namely whether clause 19.10 of the 2019 Agreement would have application to the four officers having regard to the proper construction of clause 19.7. Consequently, the Commission had authority to arbitrate the dispute under clause 10.6. The fact that the dispute had its origins in factual circumstances which occurred while the 2015 Agreement was in operation did not rob it of its character as a dispute arising under the 2019 Agreement. Current legal obligations and entitlements will often be determinable by reference to past events occurring before those obligations and entitlements were established.

[35] We do not consider that the proposition in paragraph [26] of the decision that, in the absence of a “plausible” interpretative argument put by the PFA concerning the meaning of clause 19.7 of the 2019 Agreement, “there could be no genuine dispute about the matter” is supported by the text of clause 10.2 or the facts of the case. Clause 10.2 contains no requirement that, for a matter to arise under the 2019 Agreement and be subject to the dispute resolution procedure, there is some preliminary assessment required to be made about the degree of merit of the position held by any of the parties to the dispute. Nor does the history of this matter suggest that the PFA’s concern about the MTIP status of its four members, or its position that clause 19.7 of the 2019 Agreement was intended to resolve that concern in the officers’ favour, was other than genuinely held. There was never any suggestion in the proceedings that the submissions made by the PFA concerning the proper construction of clause 19.7 of the 2019 Agreement were colourable, and in the absence of this we do not consider there was a proper basis for the conclusion that there was no genuine dispute requiring resolution. The basis upon which the PFA sought to challenge Victoria Police’s intended action with respect to the four officers had a sufficient nexus to the provisions of the 2019 Agreement such as to bring the dispute within the scope of clause 10.2, and this is the case regardless of whether the PFA’s contentions about the construction of clause 19.7 would ultimately succeed or not.

[36] We also do not agree that the exceptions contained in clause 10.2 were applicable. As to clause 11.1(d), the dispute was not about, or in relation to, any “directed placement of a surplus employee in accordance with clause 23”. No such directed placement had occurred at the time the matter was before the Deputy President, so that it was not possible to have a dispute about it. And, as the subsequent events described in the evidence of Ms Ilievski demonstrate, there will never be a directed placement of the four officers arising from this matter notwithstanding that there existed, at the time of the decision, a genuine dispute about the construction and application to them of clauses 19.7 and 19.10. The dispute was about whether the officers could be treated as unattached at all – not about any subsequent directed placement which might or might not occur.

[37] It is equally clear, in our view, that at the time of the decision the four officers simply did not have any extant statutory right of review under Div 2 of Pt 8 of the VP Act. Under s 146(1) of the VP Act, a right of review is only available, relevantly, in respect of “a decision by the Chief Commissioner, or a person authorised by the Chief Commissioner…to make a directed transfer of the officer under section 35; or…to otherwise compulsorily transfer the officer…”. No such decision had been made then nor, it appears, will such a decision ever be made arising out of this dispute. On the plain and unambiguous meaning of clause 10.2 of the 2019 Agreement and s 146(1) of the VP Act, the second exception did not apply. Given that it was not suggested by Victoria Police that any provision of the 2019 Agreement infringes the exclusion in s 5(2)(b) of the Referral Act, nor is there any ambiguity in clause 10.2 that might be resolved by reference to the Referral Act, it is not necessary for us to further consider Victoria Police’s submission that we need to have regard to the limitations on the referral of power effected by the Referral Act.

[38] Notwithstanding these matters, we have decided not to grant permission to appeal. This is for two reasons.

[39] First, we consider that the dispute which was the subject of the PFA’s application to the Commission is no longer extant such that the grant of permission to appeal would be lacking in utility. On any fair reading of the description of the dispute contained in the application, it was concerned specifically with the pending application of clause 19.10 of the 2019 Agreement to the positions of the four officers. The relief sought in the application, which has been set out above, was likewise specifically directed to the circumstances of the four officers. The position now, as disclosed in the two witness statements of Ms Ilievski, is that the four officers have left the SOSRU and, on their own initiative, obtained alternative positions within the Victoria Police. One of the four obtained a position by promotion, and the others have obtained positions at equivalent rank. It may be accepted that the officers only took the course they did because of Victoria Police’s stated intention to treat them as surplus upon the expiration of their MTIP periods, and perhaps also because of the Deputy President’s decision. Nonetheless, there is no indication on the part of the PFA that it, or the officers, want what has occurred to be reversed and for them to be placed back into the SOSRU. Any “vindication” which might result from the appeal being upheld would be entirely lacking in practical content and be merely theoretical.

[40] The PFA’s recharacterisation of the dispute, in the light of the developments concerning the four officers, as one involving a general disagreement with Victoria Police concerning the proper construction of clause 19.7 of the 2019 Agreement constitutes, with respect, a re-writing of history. There is no indication of the existence of such a dispute in the PFA’s application to the Commission nor, on the material concerning the history of the dispute, could it be inferred that the PFA would have agitated any issue of the construction of clause 19.7 of the 2019 Agreement absent the specific circumstances of the four officers arising. Indeed, the PFA’s contention that clause 19.7 was agreed in order to address the issue of the four officers tells against the proposition that some wider issue is involved. Mr Kennedy’s witness statement does not identify any other case where an officer has, prior to the commencement of the 2019 Agreement, been transferred directly into a position subject to a MTIP period without being informed about this. Further, from a practical point of view, the already small number of persons currently holding positions subject to a five-year MTIP period to which they were appointed while the 2015 Agreement operated is, necessarily, steadily diminishing. There will be none left by 1 April 2023. In those circumstances, there is little likelihood of a recurrence of the matters which gave rise to this dispute. We do not consider therefore that there is much practical substance to the concerns identified by Mr Kennedy in his witness statement which we have earlier quoted.

[41] In short, if permission to appeal were granted and the appeal upheld, there is no dispute remaining which is capable of arbitration under clause 10.6. The grant of permission to appeal would serve no practical purpose.

[42] Second, we consider that the Deputy President’s conclusions as to the merits of the dispute, albeit they were deployed incorrectly in support of his determination that he had no authority to arbitrate the dispute, were correct. Clause 19.7 of the 2015 Agreement is incapable of being read as imposing a requirement that a position subject to a MTIP period be advertised; it does no more than require that any advertisement for such a position specify the MTIP period. It is apparent from the evidence of Ms Ilievski that the job descriptions for the officers’ positions at the time specified the MTIP period, consistent with clause 19.8 of the 2015 Agreement. Thus, notwithstanding their contention that they were not informed about this at the time of their transfer to the positions, no provision of the 2015 Agreement vitiated the MTIP status of the officers’ positions.

[43] In its submissions before us, the PFA disowned the proposition that clause 19.7 of the 2019 Agreement had a retrospective operation such as to render the four officers’ positions not subject to a MTIP period. Rather, it submitted that clause 19.7 is to be read as constituting prospectively-operating preconditions for an officer being required to vacate their position and become unattached under clause 19.10, and that because these preconditions were not satisfied at the time Victoria Police intended to redeploy the four officers, then clause 19.10 could not apply to them.

[44] That submission might have substance if the conditions in clause 19.7 were capable of satisfaction by Victoria Police during the currency of the 2019 Agreement in respect of officers appointed to MTIP positions before the agreement commenced operation. But that is, of course, not the case: the positions of the four officers could not be advertised again as per the first sentence of clause 19.7, nor could the officers be advised of the MTIP period and acknowledge this in writing prior to a transfer which had already occurred as per the second sentence. Accordingly, the purported preconditions have in reality no sphere of prospective operation in relation to persons appointed to MTIP positions prior to the commencement of the 2019 Agreement.

[45] Although inventively expressed to sidestep this, we consider that the PFA’s submissions in truth seek to assign a retrospective operation to clause 19.7 of the 2019 Agreement whereby the positions held by the four officers are denied the MTIP status which they held at the time of the officers’ transfer to those positions. For the reasons stated by the Deputy President in the decision, we do not consider that clause 19.7 can be read in this way. Rather, the provision can only sensibly be read as applying to positions subject to an MTIP period which are filled during the period of operation of the 2019 Agreement. This is the only circumstance in which the requirements of clause 19.7 can have practical content. The clause is incapable of application to transfers to positions which occurred before the 2019 Agreement took effect.

[46] Our view as to the merits of the matter affords a further reason as to why the grant of permission to appeal would not serve a useful purpose. If the appeal was upheld and the matter re-determined, no better result would be achieved by the PFA.

Conclusion

[47] For the reasons given above, permission to appeal is refused.

VICE PRESIDENT

Appearances:

M Harding SC on behalf of the appellant.
R Sweet of counsel on behalf of the respondent.

Hearing details:

2021.

Sydney, Newcastle and Adelaide (via video-link).
17 May.

Printed by authority of the Commonwealth Government Printer.

<PR731715>

 1   [2021] FWC 1011

 2   AE507544

 3   AE418283

 4   [2021] FWC 1011 at [23]-[24]

 5   Ibid at [25]-[26]

 6   Ibid at [27]-[28]

 7   Ibid at [29]

 8   Ibid at [30]

 9   Ibid at [31]

 10   Ibid at [32]

 11   Ibid at [33]

 12   Ibid at [35]- [36]

 13   Ibid at [37]-[38]

 14   Ibid at [40]