DECISION

Fair Work Act 2009
s.739—Dispute resolution

The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria
v
Victoria Police/Chief Commissioner of Police
(C2021/334)

Application to deal with a dispute in accordance with a dispute settlement procedure.

[1] The Police Federation of Australia (Vic Branch) T/A The Police Association of Victoria (Police Association) has made an application pursuant s.739 of the Fair Work Act 2009 (FW Act) for the Commission to deal with a dispute in accordance with clause 10 of the Victoria Police (Police Officers, Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2019 (2019 Agreement). The dispute is in relation to the payment of a meal allowance arising under clause 76 – Daily Meal Allowance of the Agreement to officers in the State Highway Patrol (SHP) of Victoria Police.

THE 2019 AGREEMENT

[2] Clause 76 of the 2019 Agreement states:

76. Daily Meal Allowances

76.1 An employee is entitled to be paid a meal allowance in accordance with sub-clause 79.4 at the rates specified in Schedule C where the employee is required to perform duties that prevent them from returning to their usual place or places of work for a meal.

76.2 The employee will not be entitled to be paid a meal allowance where:

(a) the employer provides the employee with an adequate meal or the employer has arranged in advance for the employee to have access to adequate meal preparation and storage facilities; or

(b) where the employee receives the disturbance allowance in accordance with clause 189.

[3] The clause is in the same terms as clause 76 of the Victoria Police (Police Officers (excluding Commanders), Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2015 (2015 Agreement).

THE DISPUTE

[4] It is not contentious that Victoria Police has a State Highway Patrol (SHP) group. The SHP has offices in Notting Hill, Epping, Corio and Brunswick (motorcycle or ‘solo’ unit). Officers in the SHP patrol road law using motor vehicles and motorcycles. SHP officers commence their shift with a daily briefing at their designated office, gather their required gear and allocated vehicle and patrol Victoria’s roads as directed. The actual areas patrolled will vary depending on the priorities of Victoria Police at any time.

[5] SHP Officers do not (or very rarely do) return to their nominated office for their meal break. The dispute is in relation to whether such officers are entitled to be paid a meal allowance in accordance with clause 76.

JURISDICTION

[6] The dispute raised by the Police Association is in the same terms as a dispute previously notified by the Police Association in March 2020 in accordance with the dispute settling procedure and in relation to the payment of a meal allowance under the 2015 Agreement. The 2019 Agreement commenced operation on 1 April 2020 and, from that date, the 2015 Agreement ceased to operate. It is not in contention that the steps taken in 2020 and 2021 to resolve the dispute in relation to the 2015 Agreement are relevant to a consideration as to whether the Commission has jurisdiction to deal with the dispute currently before it.

[7] I am satisfied that the dispute is a matter arising under the 2019 Agreement. It is a question of whether SHP officers are entitled to a meal allowance under clause 76 of the 2019 Agreement.

[8] I am satisfied that the dispute has been properly notified and that the requirements of the dispute settling procedure of the 2019 Agreement have been met. In this respect I have had regard to discussions that occurred between the parties – both directly and in the Commission – in an attempt to resolve the dispute notified pursuant to the 2015 Agreement. 1

[9] To the extent that Victoria Police submitted that the Commission did not have jurisdiction to order the remedy sought by the Police Association (subsequently withdrawn at hearing) I do note that the Commission is not required to make a decision in relation to the dispute in terms sought by the Police Association (s.599 of FW Act). The limitation on the Commission in deciding the matter before it in this instance is that the decision not be inconsistent with the FW Act or a fair work instrument that applies to the parties (s.739(5) of FW Act).

[10] I am therefore satisfied that the Commission has jurisdiction to deal with the dispute.

EVIDENCE

[11] Evidence was given in proceedings by Leading Senior Constable Paul Gosling, Leading Senior Constable Peter Simons, Sergeant Michael O’Brien, Superintendent John Fitzpatrick and Senior Sergeant John Papas.

[12] Senior Constable Gosling is based at Notting Hill. He works both on a police solo and in a police vehicle (marked or unmarked). His evidence is that neither the solo nor the vehicle have adequate storage facilities for a meal to be transported to the ‘tasked’ location (i.e. the area they are tasked to work for that shift). While he says there is a fridge in the vehicle this is used only for the transportation of biohazard drug samples and is not used to store food.

[13] Senior Constable Gosling gave evidence that his ‘usual place of work’ in accordance with the 2019 Agreement is Notting Hill. At the commencement of a shift, daily tasking is allocated by the Senior Sergeant or Sergeant. This involves being tasked to numerous police service areas (PSAs). These PSAs may be relatively close (20 – 30 minutes from the designated office) whilst others may be 1-1 ½ hours distant. Senior Constable Gosling’s evidence is that the distance from Notting Hill means that units cannot return to their ‘usual place of work’ for rest breaks.

[14] Senior Constable Gosling said that the SHP induction SOP states that:

Members will be provided with a cooler ice bag and ice bricks for them to convey their meals if required. Sergeants will advise of the relevant police station for the lodging and taking of meal breaks as required during their safety briefing for the shift. If a member believes they are entitled to a meal claim they are to notify a Sergeant at their earliest convenience.

[15] His evidence is that, to his knowledge, advice as to the ‘relevant police station for the lodging and taking of meal breaks’ has never been provided at the daily briefings. Senior Constable Gosling also said he was not aware of officers giving feedback that they did not wish to take their meal break at a station or that they did not want to be briefed regularly or want advice on the meal break guidelines at the briefings at the commencement of shifts.

[16] Senior Constable Gosling said that accessing local police stations in or near the PSA to which they have been tasked is not easy as officers have to wait to get access to that part of the police station which has facilities. Further, it is often difficult to gain access to 16 hour stations to enable a break to be taken as the crews from that station may be out on patrol and hence not there to let you in. He says that “quite often” there are not fridges available to store meals.

[17] Senior Constable Gosling said that he has applied for the meal allowance in the past as provided for in clause 76 of the 2019 Agreement but these have been rejected by the Senior Sergeants which he believes was done “on advice from a higher level”.

[18] Senior Constable Gosling gave evidence that the cooler bags and ice bricks supplied are inadequate. This is particularly so on the solo where there is nowhere to store the cooler bag. The cooler bags are also inadequate on hotter days when it can get to 50⁰C in the car cabins. Senior Constable Gosling said that the cooler bag he uses is the Esky brand. He said that on one occasion on a hot day the ice brick melted and caused condensation which got into the wrapper of his sandwich which was ruined. Senior Constable Gosling said that when on the motorcycle he packs into the panniers 10 or 11 books and reference material including spare infringement notice books and initial action pads, preliminary breath testing equipment including straws, drug testing kits and a laser speed measuring device. He uses the cooler bag and ice bricks for carrying drug testing equipment as that equipment needs to be kept at a temperature that doesn’t exceed 25 C. If the testing kits go outside the operating temperature they can give a false positive reading. 2 He also carries PPE including wet weather gear, water and an E-flare. He said that on the solo he has a separate bag for his lunch.3 Senior Constable Gosling said that he does not have access to the alternative cooler bag4 and that they are not available at Notting Hill where he is based.

[19] Senior Constable Gosling identified a cooler bag 5 which he said looked like the one he used in the car and on the solo unit to store drug testing equipment.

[20] Senior Constable Gosling gave evidence that SHP is not a 24 hour operation but the hours worked during the day depend on what they have been tasked to do. For example he said that a particular operation required 8 members to work a 10.00pm to 4.00am shift.

[21] Senior Constable Gosling agreed that, while on patrol, members can choose when and where to take their rest break. He also agreed that it is “standard practice” to access a police station during the day if anything is needed such as to send off documents, after an impound, to use the bathroom or messroom including the fridge or microwave.

[22] Senor Constable Peter Simons works in SHP based in Corio. His evidence is that there has never been an issue with officers accessing nearby stations or of facilities being available to prepare meals. 6 He said that 24 hour stations were always available as were 16 hour stations unless rostering requirements closed them. He indicated that he recalled being advised a couple of years earlier about depositing meals at police stations “but that was never truly enacted”.7

[23] Senior Constable Simons gave evidence that members in Major Collision Investigation Unit (MCIU) do receive the meal allowance although agreed that the MCIU are called out to investigate as and when a collision occurs and that he does not work in or have experience working in MCIU. He also gave evidence that “other units within Victoria Police were also being paid these allowances.” 8

[24] Senior Constable Simons gave evidence that SHP members based at Corio were told to keep their meals in the drug sample fridge in their patrol car but members considered this inappropriate. They were then provided with cooler bags but did not use them as they were considered an inadequate alternative for carrying a meal. He said that members were told they could take their rest breaks in Government buildings but were not told at what time or specifically where they could do so.

[25] Sergeant Michael O’Brien is based at Notting Hill. His evidence is that most of his work is on the road in a patrol vehicle. The locations he is tasked to work make it impractical to return to Notting Hill for rest breaks. Sergeant O’Brien is a supervisor at Notting Hill and delivers the daily tasking to the unit.

[26] Sergeant O’Brien says that members have only very rarely been advised to return to Notting Hill for the purpose of their meal break. He said that supervisors were instructed to tell members to attend to the nearest police station in the area they were tasked to but that this was “logistically impossible.” He said that it was not clear if members should deliver their meals to a police station within the PSA they were tasked to and ignore any traffic offences they might observe on the way or attend to traffic offences and potentially have their meal ruined.

[27] Sergeant O’Brien said that he did attempt, on one occasion, to arrange for members to drop their meals off at Mornington police station but was told by the Senior Sergeant there to “run and jump” as the fridge was only big enough for members at the station. This was the only time he had sought to arrange in advance for members to access a particular police station. 9

[28] Sergeant O’Brien also said that it was impractical to drop a meal off at a particular police station as tasking within a PSA could mean that, at the time of the meal break, members were not near the station where they had left their meal. He also spoke of the difficulties experienced by officers in accessing 16 hour stations where the members at that station may be on patrol. He agreed that the ability to take a meal break at a police station is well known throughout SHP and that members have been advised of this a number of times, including by himself. Sergeant O’Brien agreed that members do not have to attend a police station within the PSA they are tasked to but may attend the closest police station for their meal break which may be in a neighbouring PSA.

[29] Sergeant O’Brien said that it is up to members as to when they take their meal break but they would tell him first. He said that sometimes they will take their break together – he gathers everyone at the one place, de-briefs on the work to date and does a welfare check. The officers then take their meal break. He said that this is usually arranged during tasking or may be done over the radio.

[30] Segreant O’Brien said he used to take his lunch to work but he had a “bad experience.” He got tied up, his egg sandwich in the car got overheated and he was “almost sick.” 10 The sandwich was in a cooler bag at the time.11 Of the cooler bag provided to members Sergeant O’Brien said “…if you can call it a cooler bag. You’re lucky to fit a sandwich and a drink in it.” 12 He agreed that in the patrol cars members could put their cooler bags on the back seat. He could not comment on the cooler bags provided for the solos.

[31] Superintendent John Fitzpatrick is the Divisional Commander, Road Policing Command for Victoria Police. He has overall managerial responsibility for SHP, road crime, alcohol and bus units and technical support unit. He said that the role of SHP is the enforce the States’ road policing legislation. Its focus is typically on key areas of speed, alcohol, drugs, fatigue and distractions.

[32] Superintendent Fitzpatrick said that at the commencement of each shift members report to their designated location where they are provided with instructions (tasked) and given a safety briefing. This process takes 15-20 minutes. They then proceed by vehicle to carry out instructions, returning to their designated office at the end of the day. Tasking is most often done to a PSA or to a regional area. When on duty officers operate either a static or patrol setup. Officers will always be “two-up” meaning they will have another officer working alongside them. Rostering is done such that officers know which PSA they will be working at least a day prior to the shift.

[33] With respect to meal breaks Superintendent Fitzpatrick gave evidence that the times of meal breaks are not prescribed in the 2019 Agreement and that, in his experience, members will either buy their lunch or take their lunch to work, will take a break when and where they wish and will, at times, do so in the company of other members. It is rare, he said, that members would return to their designated office to take their break unless they were close by.

[34] Superintendent Fitzpatrick gave evidence of a dispute in relation to the payment of a meal allowance under the 2015 Agreement. As a result of that dispute a recommendation was issued by the Commission that the parties agreed to apply a definition of “usual place of work” for the duration of the 2015 Agreement. 13 The guidelines issued as a result of the recommendation stipulated that SHP officers are tasked to perform duty away from their usual place of work. If they are provided with the opportunity to transfer their meal to an alternative place of work where they could store, prepare and consume their meal they would not be eligible to claim the meal allowance. As a result of this SHP management made officers aware they could attend a nearby police station to prepare and/or consume a meal and provided officers with a cooler bag and ice bricks to store meals they have brought to work.

[35] Superintendent Fitzpatrick said officers were made aware of the guidelines following the dispute under the 2015 Agreement and new members to the unit are made aware of the guidelines on induction and provided with a cooler bag and ice brick. He said that, while the recommendation no longer applies (it only operated for the life of the 2015 Agreement) the guidelines have not been revisited. He said that this was because it was understood the Police Association supported the guidelines.

[36] Superintendent Fitzpatrick gave evidence that the guidelines are not suitable for SHP as the definition of “usual place of work” is unrealistic. This is because SHP officers do not work at police stations but rather their usual place of work is the police vehicle “on the road” and not a designated office. While officers receive their tasking and instruction at a designated office they then perform their “usual work” on the road. Superintendent Fitzpatrick said that the recommendation arising from the earlier dispute is premised on an understanding that police officers usually work in a police station or office building but this is not the case for SHP officers.

[37] Superintendent Fitzpatrick gave evidence of police stations within each PSA. He said that each police station has toilets, microwave ovens, fridges, a mess room, meal utensils and tea and coffee. He said that officers would know the location of police stations within their PSA or could easily be found using an app on a mobile phone. He said officers routinely access police stations when on the road to use facilities including the mess room.

[38] Superintendent Fitzpatrick said that each officer is provided with a cooler bag and that there are spare cooler bags available to be taken from each of the SHP offices. Further, there are ice bricks stored in offices and available for collection (frozen) each day or officers can take them home to freeze. He said you can fit three or four rounds of sandwiches, fruit, yogurt and a drink in the cooler bag.

[39] Superintendent Fitzpatrick said that there is adequate space in SHP motor vehicles for the storage of cooler bags. With respect to motorcycles he said the Solo Unit purchased a particular cooler bag that can fit in the panniers and that there is adequate space in the panniers to store the cooler bags. Officers tasked to ride all terrain motorcycles are required to tow the motorcycle in a trailer behind a 4WD police vehicle. These officers can store their cooler bag in the 4WD.

[40] Superintendent Fitzpatrick said that in extreme temperatures solo riders will often work in the car based units as it is not practical to wear motorcycle gear in such conditions.

[41] In relation to the MCIU, Superintendent Fitzpatrick said the officers of that unit can spend considerable time at an accident location when called out. If they do not have the opportunity to leave the scene of an accident and are there for an extended period they would get the meal allowance. It is not about the MCIU officers not being able to return to the office but not being able to leave a scene when they are attending an accident site. He said that it is not possible to compare the circumstances of the MCIU with SHP. He said, the MCIU office at Notting Hill is the MCIU usual place of work where they carry out most of their work.

[42] Superintendent Fitzpatrick said the feedback he has received of SHP officers not wanting to take their meal breaks at police stations or government offices has come through the sergeants, senior sergeants and inspectors. Further, he said he was told by the senior constables that SHP officers did not want constant reminding at the tasking briefings on the guidelines for meal breaks.

[43] Superintendent Fitzpatrick said that they do not arrange in advance for officers to access meal preparation and storage facilities because, having consulted officers, they do not want to disadvantage officers by directing them to take their breaks at a certain time or location. He also gave evidence that, by the issue of rosters 28 days in advance, officers know what they are doing and where and hence know the police stations in their area, they have arranged in advance for officers to have access to food preparation and storage.

[44] Superintendent Fitzpatrick said that he had tasked officers to purchase cooler bags. He said he made it clear that they needed to be sufficient for their purpose. Once a cooler bag thought appropriate was sourced it was then “socialised” with members. He told the officers that if the cooler bag sourced was not adequate they should find another until they sourced one that was adequate. He had received no complaints in relation to the cooler bags purchased for use.

[45] Superintendent Fitzpatrick said he was not aware of any officers being told to “run and jump” at Mornington station and he has never experienced such behaviour in his 40 years with Victoria Police. He said that if he had known of the incident he would have let the officer in charge of Mornington police station know and would have had something done about it.

[46] Superintendent Fitzpatrick was not aware of the evidence of food having spoiled in cooler bags. He said that if he was aware that an officer’s lunch had spoiled in the car the circumstances would be judged and a meal allowance may be granted.

[47] Senior Sergeant Papas is the Officer in Charge of the Solo Unit based at Brunswick. He gave evidence that he was aware of the meal allowance dispute in 2017 which resulted in a recommendation issued by Commissioner Wilson and the guidelines subsequently issued throughout Victoria Police including to SHP. These guidelines, he said, ceased to have effect once the 2015 Agreement ceased to operate. He said that the guidelines, once made, were widely circulated through the Solo unit and were discussed with officers. He said officers were reminded regularly of the content of the guidelines.

[48] Senior Sergeant Papas said that, as a means of supporting the guidelines, SHP purchased cooler bags for officers to use to transport their meals. He said he tasked a sergeant with responsibility to source a cooler bag suitable for the panniers. They purchased two types of cooler bags – a larger collapsible cooler bag for the 4WD 14 and a freezable lunch bag for the BMW solos.15 The freezable bag has gel built into the lining, removing the need for ice blocks. This bag was purchased on the recommendation of an officer who had purchased it for himself. This cooler bag is made available to all officers.

[49] Senior Sergeant Papas provided photographs of the panniers unpacked, packed, including the freezable cooler bag. 16

[50] Senior Sergeant Papas said that the solo units operate “two-up” as a mobile patrol unit. They generally share kit across the two motorcycles. Working as a team he said that both members would not be required to each take all of the books needed “to lighten the load” except that each will always carry a penalty notice book. He would expect the unit to take 10-12 straws for blood alcohol testing although if working with a mobile unit attending a stationary unit they would have access to a box of 100-200 straws in the vehicle. They could also leave waste in the stationary vehicle.

[51] Senior Sergeant Papas agreed that the integrity of the drug testing kit can be effected if they are stored at over 25 degrees. He said that on days of excessive heat they would not be taken out. If a member of the public needed drug testing the solos would organise to have a highway patrol attend or, if near the office, have a kit brought from the office.

SUBMISSIONS

Police Association

[52] The Police Association submits that the provisions of clause 76 of the 2019 Agreement place an obligation on Victoria Police to pay the meal allowance to members in SHP because:

•  Members are performing duties which prevent them from returning to their workplace. Members spend 2 hours or more travelling to or returning from an operation and to have them travel for a further 2 hours to return to their usual place of work for a meal break would be onerous;

•  Victoria Police has never ‘arranged in advance for the employee to have access to adequate meal preparation and storage facilities’ and on at least one occasion when members were told to attend a particular station to have their meal they were told by station there was nowhere to store their meal;

•  The cooler bags “unilaterally issued” to members were not subject to consultation and are not large enough for “some meals” and not every member has been issued with a cooler bag;

•  Members on motorcycles do not have room in their panniers to store cold packs.

Clause 76.1 – Usual place of work

[53] The Police Association seeks an order from the Commission that defines “usual place of work” as being the office to which the employee is normally assigned. 17 It submits that Victoria Police has failed to arrange in advance a place for the preparation and storage of meals for SHP officers.

[54] The issue before the Commission is simple. Clause 76.1 of the 2019 Agreement requires that a meal allowance be paid where an employee is required to perform duties that prevent them from returning to their normal place of work for a meal.

[55] The Police Association submits that the history of the phrase “usual place of work” can be traced to the decision of the Employee Relations Commission of Victoria in The Police Association v The Victoria Police (ERCV decision). 18 In that decision the Commissioner resolved a dispute in relation to the payment of meal allowance. The following criteria were set for the payment of the allowance at that time:

(i) The duty must be unforeseen;

(ii) The member must be away from the station for a continuous period of 5 hours or more;

(iii) The member must travel beyond a 24 kilometre radius of the member’s station in Melbourne, Ballarat, Bendigo and Geelong areas only. In all other parts of Victoria the member must travel such distance that the member cannot reasonably return to his/her station or place of employment. 19

[56] That three part test continued until the Victoria Police Force Enterprise Agreement 2011 (2011 Agreement) (sic) 20 where, it is submitted, “the parties agreed that test did not adequately reflect the realities, simply because there were times when people couldn’t return to their workplace, but had not travelled more the 24 kilometres.”21 The provisions of the 2019 Agreement generally reflect those of the 2015 Agreement.

[57] The Police Association submits that the cases relied on by Victoria Police to support its case (Workcover Authority (NSW) (Inspector Keenan) v Technical & Further Education Commission, 22 Mainbrace Constructions Pty Ltd v WorkCover Authority (NSW)23 and Tsougranis v WorkCover Authority (NSW) (No 2)24) are unhelpful as none deal specifically with the phrase “usual place of work”. Likewise the Police Association submits that the decision in Hanns v Greyhound Pioneer25 does not assist Victoria Police in its submissions.

[58] The Police Association rejects the evidence of Superintendent Fitzpatrick that the usual place of work for SHP officers is the highway or roads they are required to patrol. It says that, to accept the submissions of Victoria Police would have every police officer’s usual place of work being wherever they are performing duty at the time. If this was the case members in the MCIU would have their usual place of work at an accident scene they are attending and would not be eligible for the meal allowance they do, in fact, receive.

[59] The Police Association submits that to accept the definition of “usual place of work” as posited by Victoria Police will have implications for police officers all over the state performing a vast array of functions. The submissions of Victoria Police that ‘usual place of work’ is the place where officers are directed to work strips the clause of any meaning with such an interpretation of the clause “‘extraordinary’, ‘capricious’ ‘irrational’ and ‘obscure’” such that the legislature cannot have intended such a meaning. 26

[60] The Police Association submits that it does not say that anytime an officer is out of the office they are entitled to the payment of the allowance as the clause restricts entitlement to when duties prevent the officer returning to their usual place of work.

[61] The Police Association relies on the ERCV decision in which the three requirements for payment of the meal allowance were set out and, further, the decision in Police Federation of Australia v Victoria Police/Chief Commission of Police (2013 decision) 27 in which Deputy President Smith reinforced that each of the three requirements in the clause then applying to the payment of the meal allowance in the 2011 Agreement had to be met for the allowance to be paid. Whilst finding no ambiguity or uncertainty in the clause the Police Association submits Deputy President Smith found the provision required that an officer be able to return to their station and found that the highway did not constitute a “station or place of employment.” It submits, further, that Deputy President Smith found that cooler bags were a health and safety consideration but did not impact on the application of the clause.

Clause 76.2 – adequate meal preparation and storage facilities

[62] As to clause 76.2 of the Agreement the Police Association submits that Victoria Police “begrudgingly” agreed that it had never arranged in advance for SHP members to have access to adequate meal preparation and storage facilities and, in one example where they may have done so, SHP members were told (at Mornington police station) to “run and jump”.

[63] The Police Association submits that the intent of clause 76.2 of the 2019 Agreement is clear – a person either has access to adequate meal preparation and storage facilities and, if they do not, they are entitled to the payment of the allowance. That an employee is on the road is no basis to deny them access to either facilities or the meal allowance. The Police Association rejects the position of Victoria Police that clause 76.2 does not apply but rather says that clause 76.2 stands on its own.

[64] As to the cooler bags the Police Association suggests these are not fit for purpose evidenced by the spoiling of lunches on at least two occasions.

[65] The Police Association submits that I should infer from the evidence of Superintendent Fitzpatrick (that people take a sandwich for lunch or buy their lunch) that there are not adequate facilities arranged for officers to prepare their lunch.

[66] The Police Association submits that the provisions of clause 76.2 could be satisfied by members working in any particular PSA being told to take lunch at a particular time at a particular police station (the location having been arranged in advance).

Victoria Police

The questions to be answered

[67] Victoria Police submits that, despite the submissions of the Police Association and what it seeks, there are, in effect, two questions to be answered from the arbitration brought on by the Police Association:

(i) For the purposes of clause 76.1 of the 2019 Agreement are officers of the SHP “required to perform duties that prevent them returning to their usual place or places of work for a meal”?

(ii) If so, and for the purposes of clause 76.2, is the SHP currently “arranging in advance for the employee to have access to adequate meal preparation and storage facilities”?

[68] Victoria Police submits that the answer to (i) is no. To the extent the Commission might be required to answer question (ii), the answer is yes.

Clause 76.1 – usual place of work

[69] Victoria Police submits that the usual place of work for members of SHP is on the road.

[70] Victoria Police submits that clause 76.1 of the 2019 Agreement is conditioned on a requirement that an officer perform duties that prevent the officer from returning to their “usual place of work” for a meal. It submits that the purpose of the clause is to compensate an officer for the dislocation such that, if the officer is not able to return to their usual place of work they are compensated by the provision of a meal allowance. It says that this purpose is not disturbed by its construction of “usual place of work”.

[71] Victoria Police submits that the ordinary meaning of “usual” is “habitual or customary. 28 “Place of work” means premises or other place where persons work29 and “premises” includes land, vehicle, vessel, part of a building, installation, tent, moveable structure, car, or aircraft.30 A place of work, it is submitted, is therefore not confined to an office.

[72] Victoria Police submits that the MCIU officers’ usual place of work is the office in Notting Hill. From time to time those officers are dislocated and required to attend the site of a collision and it is not possible to arrange, in advance, a meal. As such they become entitled to the allowance. The allowance is not paid every day but just for the period of dislocation (that is, while at an accident scene that they cannot leave).

[73] Victoria Police submits that there is nothing ambiguous about the words used in the clause.

[74] The approach to construction should be in accordance with the principles in The Australasian Meat Industry Employees Union v Golden Cockeral Pty Ltd (Golden Cockeral). 31 However, it submits that, in CPSU, the Community and Public Sector Union v Victoria Police32 (CPSU) Commissioner Wilson, in considering a term of the agreement relevant to those employees in relation to the “usual place of work” rejected evidence in relation to bargaining around the clause as he found such evidence to be subjective and could not be used to determine if the clause in that matter was ambiguous or uncertain.33

[75] Victoria Police says that the history of the meal allowance provision as put by the Police Association does not support as it claims. In the dispute before the Employee Relations Commission Victoria the relevant criteria for payment of the allowance was that the duty must be unforeseen where unforeseen duty was defined as “duty for which no prior knowledge existed on a previous day or shift”. This, Victoria Police submits, accords with its submission that the allowance is payable when the known routine is disrupted. In the ERCV decision Commissioner Pimm found that “Members performing court orderly or prosecution duties that are not unforeseen are not entitled to a meal allowance. If a member undertaking court orderly or prosecution duties does not have access to meal facilities in a courthouse, a police station or reasonable proximity then they are eligible.” 34 The guidelines issued (and attached to the ERCV decision) specify that if the duties are not unforeseen there is no entitlement to the meal allowance unless there is no access to meal facilities.

[76] Victoria Police says that the decisions it relies on support and do not detract from the construction it advances. The daily work of officers in SHP is to be on patrol and there is no dislocation of them such that they should be entitled to the allowance.

Re clause 76.2 – access to meal preparation and storage facilities

[77] Victoria Police submits that clause 76.2 of the 2019 Agreement does not require that Victoria Police prearrange adequate meal preparation and storge facilities for each individual officer prior to the commencement of each shift or that Victoria Police must then direct each officer to attend that place or that Victoria Police is required to give such direction at the commencement of each shift as is posited by the Police Association.

[78] Victoria Police submits that the current practice at SHP meets it obligations as:

•  Each officer knows in advance of the location of the PSA in which they will work;

•  Officers are not required to take a break for a meal at a specified time;

•  Officers are aware they can access any police station at any time with about 324 police stations across the PSAs;

•  Under the guidelines developed following the recommendation of Commissioner Wilson in 2017 the obligation on Victoria Police was to make officers aware that they are able to access police stations;

•  In order to further support the guidelines Victoria Police has purchased cooler bags for the storage and transportation of meals with different cooler bags purchased to suit the solo units.

[79] Victoria Police submits that the evidence of witnesses for the Police Association demonstrates the near impracticability of being able to arrange for storage and access to meal preparation facilities in advance for officers in SHP at a specified location. The evidence of Sergeant O’Brien is that the duties are dynamic and that they could be anywhere within a PSA at the time a meal break is due to be taken. Victoria Police agreed in its submissions that it does not have a system where officers are told when and where they must take their meal break and this is because:

•  It is not possible to designate a police station in advance due to the dynamic nature of the work;

•  It diminishes productivity by detracting from patrol requirements at tasking;

•  It diminishes productivity by requiring officers to drive to designated locations to eat;

•  By doing so in tasking it takes attention away from occupational health and safety;

•  It removes choice from officers as to when and where they eat.

[80] Victoria Police says that it has, in any event, made adequate arrangements in advance by the provision of cooler bags suitable for vehicle patrols and for solo units. Victoria Police submits that the only complaint in relation to cooler bags and panniers has come from Senior Constable Gosling. If this is a real problem Victoria Police says that it is something it will have to, and will, deal with as it impacts on the ‘adequacy’ requirements of the clause but that the evidence is otherwise that the cooler bags are adequate and there is no basis on which it could be concluded they are, “as a standing proposition” inadequate.

Disposition

With respect to the order sought by the Police Association to resolve the dispute 35 Victoria Police submits that:

•  Clause [1] paragraph 1 appears to be an extra claim contrary to clause 4 of the 2019 Agreement

•  Clause [1] paragraph 2 appears to be a finding

•  Clause [1] paragraph 3 appears to be a finding

[81] The order sought therefore does not ‘order’ anything to be done and should be dismissed.

CONSIDERATION

The history of the clause and disputes

[82] The parties have taken me to four separate proceedings in relation to the payment of the meal allowance. I have considered each of these but find them of minimal assistance in resolving the matter before me. None of those decisions has grappled directly with the meaning of “usual place of work” and, to the extent the recommendation of Commissioner Wilson in 2017 did deal with it, the recommendation is no longer in force.

[83] The provision considered in the ERCV decision of Commissioner Pimm is not the clause as it currently appears in the 2019 Agreement. The decision of Deputy President Smith in the 2013 decision does not go to the matter before me and makes no finding as “usual place of work”. I would observe however that, in that matter, the addition the Police Association sought to the meal allowance clause appears to be not dissimilar to what became the meal allowance clause in the 2015 Agreement and is now in the 2019 Agreement. To the extent either of these decisions is used to support some claim as to the intention of the parties in bargaining the evidence before me would not allow me to draw any conclusion as to the parties objective intentions.

[84] In CPSU Commissioner Wilson did not make any finding as to “usual place of work” as used in clause 30.9 of the 2012 Determination 36 or to its ordinary meaning but rather to what should occur when an employee is asked to work somewhere other than their “usual” place of work and whether the operation of clause 30.9 was subject to some implied restraint related to the “reimbursement of expenses for meal, travel and relocation” as set out in Appendix 8 of the 2012 Determination. Commissioner Wilson ultimately found that the disputed clauses had a plain meaning, that Appendix 8 only conditioned “travel, meal and relocation” expenses and that clause 30.9 was not in relation to such expenses.

[85] I would also observe that the reliance of Victoria Police and the Police Association on the ERCV decision in relation to meal allowance is also misplaced. Meal allowance for court attendance remains a separate provision in the 2019 Agreement. The views expressed by Commissioner Pimm as to meal allowance generally apply to the clause that was before him and may well be helpful if the clause had remained unchanged, but it has gone through much since that time, and the clause before me is not that considered in the ERCV decision.

[86] What these decisions and the 2017 recommendation do indicate is that circumstances as to the payment of meal allowance for officers (as was observed by Deputy President Smith in the 2013 decision and still true today) is that this is not a new controversy.

Is the clause ambiguous or uncertain?

[87] The principles relevant to the interpretation of an Agreement are clear 37 and accepted by both parties in the matter before me. I do not repeat them here.

[88] The first matter to determine is if the provisions in the 2019 Agreement are ambiguous and uncertain. If the clause is clear on its face then recourse to extrinsic material or determination of the common intention of the parties is not necessary. 38

[89] In Advantage Aged Care the Full Bench of the Commission was considering the meaning of s.602 of the FW Act. As the Bench observed:

[22] Ascertaining the legal meaning of a statutory provision necessarily begins with the ordinary grammatical meaning of the words used, having regard to their context and legislative purpose. Context includes the language of the FW Act as a whole, the existing state of the law, the mischief the provision was intended to remedy and any relevant legislative history.

[23] Section 15AA of the Acts Interpretation Act 1901 requires that a construction that would promote the purpose or object of the FW Act is to be preferred to one that would not promote that purpose or object (noting that s.40A of the FW Act provides that the Acts Interpretation Act 1901, as in force at 25 June 2009, applies to the FW Act). The purpose or object of the FW Act is to be taken into account even if the meaning of a provision is clear. When the purpose or object is brought into account an alternative interpretation may become apparent. If one interpretation does not promote the object or purpose of the FW Act, and another does, the latter interpretation is to be preferred. Of course, s.15AA requires us to construe the FW Act, not to rewrite it, in the light of its purpose.

[footnotes omitted]

[90] In that context the Full Bench said

[56] It is, of course, permissible to approach the interpretation of legislation by taking into account the consequences of giving a particular meaning to an Act. As noted by Pearce, ‘interpretation by reference to consequences is essentially a shorthand version of the purposive approach to interpretation.’ Characterising a possible interpretation as ‘extraordinary’, ‘capricious’, ‘irrational’ or ‘obscure’ is to say, in effect, that the legislature cannot have intended such a meaning.

[footnotes omitted]

[91] That is, the interpretation of legislation, including reference to the purpose of that legislation, is guided by s.15AA of the AI Act.

[92] In Golden Cockeral the Full Bench found that the AI Act does not apply to interpretation of an Agreement. 39 The reliance of the Police Association on the statement of the Full Bench in Advantage Aged Care at [56] is therefore misplaced. However, even if it is relevant it does not assist the Police Association for the reasons given below.

[93] I am satisfied that there is no ambiguity in the clause. It is plain on its face. The entitlement to the daily meal allowance is satisfied if a requirement is met – that is that the duties of the officer prevent them from returning to their usual place of work for a meal.

[94] Whether that entitlement is enlivened requires a consideration of whether the duties prevent a return to the usual place or places of work. In order to do so it is necessary to determine “the usual place or places of work” of the officers concerned.

[95] If the entitlement remains enlivened following this inquiry it is then necessary to consider if (in this case) Victoria Police has “arranged in advance…access to” adequate storage and meal preparation facilities such that the entitlement, once enlivened, is then extinguished.

[96] I reject the submissions of the Police Association that clause 76.2 stands alone. There is nothing in the wording of clause 76.2 that suggests it creates, by itself, any entitlement. Clause 76.2 expressly says that an employee will not be entitled to be paid a meal allowance in certain circumstances. It does not set the circumstances where the entitlement is created. This is done in clause 76.1 which expressly provides for when an employee is entitled to a meal allowance. Clause 76.2 is drafted to strike out the entitlement that is otherwise enlivened by clause 76.1. It does not, and cannot, stand alone to create an entitlement.

[97] I am not satisfied that there are surrounding circumstances that would otherwise determine any ambiguity in the clause 76.1 or 76.2 of the 2019 Agreement. Given my finding as to no ambiguity it is not necessary to consider surrounding circumstances to aid interpretation of the 2019 Agreement.

[98] While I am satisfied that the terms of the 2019 Agreement relevant to this dispute are unambiguous that does not mean that the meaning of the entitlement does not need to be properly understood.

[99] The first matter to determine is the “usual place or places of work” of SHP officers.

Usual place of work

[100] The “usual place of work” for officers is not defined in the 2019 Agreement. It is a matter of fact which must be determined objectively, taking into account all of the relevant circumstances.

[101] A determination of the usual place of work for officers who carry out their duties primarily from a single location but who may occasionally be out of the office to attend, for example, the scene of an accident, will not be effected by the determination of the usual place of work for an officer who is rarely in an office.

[102] The determination of the usual place of work for officers in SHP who are, as a matter of course, on patrol will not effect and is not effected by any consideration of the circumstances of officers in MCIU (of which, in any event, there is limited direct evidence).

[103] “Usual” (as an adjective) is defined as:

1.  habitual or customary.

2.  such as is commonly met with or observed in experience; ordinary.

3.  in common use; common. 40

[104] I am satisfied that the meaning to be given to “usual” as it appears in clause 76 is ‘habitual’ or ‘customary’. This is supported by the decision in Hanns 41 That this decision was in relation to construction of workers’ compensation provisions does not detract from its relevance. I accept that the usual place of work for SHP is the place where the SHP officers habitually attend to for the purposes of undertaking the tasks they are required to perform.

[105] I accept that SHP officers do have a place they are required to attend to each morning at the commencement of their shift for their daily briefing and tasking and again each afternoon prior to completing their shift. This location is not, however, where they perform their customary work. Where the work is performed “varies from time to time depending on the roster and tasking.”

[106] The evidence of Senior Constable Gosling and Sergeant O’Brien is that the “functions and responsibilities of SHP’s” include:

•  Provision of strategic and tactical advice to both internal and external inquiries on Road Policing.

•  Conduct targeted traffic operations within identified areas as directed by the Road Policing Planning Unit.

•  Maintenance of a high visible police presence within a Police Service Area or Division to reduce the number and severity of vehicle collisions.

•  Detection of and prosecution of traffic offenders.

•  Utilisation of specialist equipment and techniques to detect speed, alcohol and drug related offences.

•  Assistance to general policing operations by providing traffic management support.

•  Contribution to the achievement of outcomes sought in Regional / Divisional action plans.

•  Support General Policing operations.

•  Provision of an intra and inter-Region response as required.

•  Provision of an enhanced response capacity to Road Policing requirements that span the Region.

•  Provision of a strategic response to Regional issues in support of local operations.

[107] Sergeant O’Brien also gave evidence that most of his work “revolves around working out on the road in a police vehicle” and that “SHP offers its people great diversity in terms of work locations and offers members a high level of exposure to all facets of road policing. All SHP members are authorised to perform roadside drug testing. SHP Offices are regularly deployed to rural areas particularly over holiday periods and public events. The four SHP Offices pool their resources, which enables the SHP to be able to deploy many vehicles and personnel to a targeted area.”

[108] This written and oral evidence of SHP officers does not support a conclusion that the “usual place” where SHP officers perform their functions is the place where they start and conclude each shift. As Sergeant O’Brien said, most of the work performed is “out on the road in a police vehicle.” That Senior Constable Gosling referred to Notting Hill as his “usual place of work” does not alter the objective finding based on the evidence of witnesses as to where SHP officers customarily perform their work.

[109] SHP officers could not perform their work at the locations where they commence and conclude their shifts. This much is apparent from the evidence given. This leads me to conclude that the usual place of work of SHP officers is on the road in their vehicle or on their motorcycle.

[110] In reaching this conclusion I have taken into account that the amount of time spent at the commencement and conclusion of the shift is, in total, not more than an hour per day. By far the majority of working time of the officers is spent away from that location.

[111] This result may appear inequitable to the officers in SHP but it seems to me that, as the provisions had previously existed, these members would not be entitled to the allowance. In the ERCV decision the entitlement to the meal allowance was only enlivened if three conditions were met, one of which was that the duty must have been unforeseen (defined as no prior knowledge the day or shift before the duty). By the advance notice of the roster SHP officers are aware of the duty they will undertake. The current incarnation of the provision does not alter the position of the SHP officers as it relies on the determination of a usual place of work.

[112] I accept that a construction that would render clause 76 with no work to do should be avoided, but that some officers may not benefit from the clause does not mean the clause does not have work to do. To the extent information was put before me in relation to MCIU officers, I accept that there are real circumstances where they are called away from their usual place of work (Notting Hill) on a temporary basis to attend an accident scene. If they are at that scene such that they cannot access their usual place of work as specified in clause 76 or a meal is not provided to them they will be entitled to a meal allowance. But the meal allowance is not something they have access to when they are in their offices doing what it is they do at Notting Hill. This, it seems to me, is how the meal allowance is intended to work. Whilst no evidence was lead on it I accept that other officers would, in similar circumstances, be eligible to receive the allowance.

[113] I acknowledge that this was a live issue under the 2015 Agreement and, as part of the resolution before Commission Wilson, guidelines were established arising from the 2017 recommendation which resolved, for a limited time, this question for SHP officers. But that recommendation always had a defined period of operation.

CONCLUSION

[114] Having found as above it follows that SHP officers are not performing duties that prevent them from returning to their usual place or places of work for a meal. The entitlement not being enlivened it is not necessary to determine if the entitlement is then struck out because of the operation of clause 76.2(a). It follows that I do not need to determine if Victoria Police has, by its actions, arranged in advance for officers to have access to adequate meal and preparation and storage facilities. I would observe however that clause 76.2(a) would appear, on its face, to require some positive (beyond passive) action by Victoria Police.

[115] Whether the cooler bags provided are fit for purpose is not a matter I need determine. I would observe however that evidence of two spoiled sandwiches does not perhaps demonstrate a problem but, in any event, the matter can be taken up separately.

[116] The application is therefore dismissed.

COMMISSIONER

Appearances:

N. Baldini for the Applicant.

L. Howard for the Respondent.

Hearing details:

2 July 2021. Melbourne, by video.

Printed by authority of the Commonwealth Government Printer

<PR732513>

 1   See Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2020] FCA 1694, [106]-[110]

 2   Transcript PN481.

 3   Transcript PN458

 4   ECB p 182 and p183

 5   ECB p181

 6   Transcript PN115

 7   Transcript PN118.

 8   Witness statement SC Simons ECB page 134 and page 135

 9   Transcript PN286

 10   Transcript PN260

 11   Transcript PN292

 12   Transcript PN261

 13   Statement of Superintendent Fitzpatrick ECB p151, [31]

 14   Senior Sergeant Papas witness statement, JP-03, ECB p181

 15   Senior Sergeant Papas witness statement, JP-04, ECB p182-183

 16   Senior Sergeant Papas witness statement, JP-05, ECB p184-185

 17   Transcript PN902

 18   Decision E93/0177 (15 October 1993, Commissioner Pimm)

 19   Police Association final submissions, ECB p203

 20   It is apparent that the “three part test” remained in the 2011 Agreement and was replaced in the 2015 Agreement.

 21   Transcript PN898

 22   (1999) 92 IR 251, 261

 23   (2000) 102 IR 84, [52];

 24   (2006) 154 IR 58, [36]-[37])

 25   (2006) 196 FLR 361

 26   See Advantage Aged Care v Health Services Union [2021] FWCFB 453 [56]

 27   [2013] FWC 2893

 28   See Hanns v Greyhound Pioneer (2006) 196 FLR 361 (Hanns)

 29   See Mainbrace Constructions Pty Ltd v WorkCover Authority (NSW) (2000) 102 IR 84, 10;

 30   Ibid, 11

 31   [2014] FWCFB 7447

 32   [2016] FWC 2977

 33   Ibid, [50]

 34   ERCV decision, p 6. ECB p 200

 35   See ECB p210

 36   Victorian Public Service Workplace Determination 2012, AG895510 PR526534

 37   Golden Cockeral, [41]

 38   Ibid [41] item 4

 39   Ibid [40]

 40   Macquarie Dictionary, on-line version, accessed 27 July 2021

 41   (2006) 196 FLR 361, [26]