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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                                    

 

COMMISSIONER MIRABELLA

 

C2021/8036

 

s.739 - Application to deal with a dispute

 

Police Federation of Australia

 and

Victoria Police/Chief Commissioner of Police

(C2021/8036)

 

Melbourne

 

10.00 AM, FRIDAY, 13 MAY 2022


PN1          

MR N BALDINI:  Trig is on our graduate program and we have these three members involved, Senior Constables Merritt, Schauk(?) and Sergeant Sordello(?) as well.

PN2          

THE COMMISSIONER:  Thank you.  Mr Garozzo, you seek permission?

PN3          

MR M GAROZZO:  Yes.  Good morning, Commissioner.  I'm not sure if I - there's a clause of the enterprise agreement under which the dispute is brought, clause 10.3, that says that the parties may choose to be represented by a person of their choice.  I'm not sure if it's strictly necessary for me to seek permission, but in any event I would and o the basis that given that the matter involves the question of construction of the enterprise agreement and the very complex jurisdictional issues that Victoria Police seeks to assist the Commission with - it would assist the efficiency of the matter to grant permission.

PN4          

THE COMMISSIONER:  Mr Baldini, do you have any objections?

PN5          

MR BALDINI:  I have no objection, although I note that there are four qualified lawyers who are employees of Victoria Police present at the moment, two of whom work within workplace relations.  So we are puzzled as to the need for additional legally qualified practitioners and whilst we are not formally lodging any objection we note that previous Commission decisions have discouraged the use of external solicitors where there are sufficient legally qualified people at an employer and we certainly have an abundance of those today.

PN6          

THE COMMISSIONER:  Thank you, Mr Baldini.  On the basis that I'm of the view that it would be of assistance to the Commission, particularly in consideration of the jurisdictional matters I will grant permission.  Now, this matter is brought about because the Victorian branch of the Police Federation filed with the Commission an application under section 739.

PN7          

There's been significant discussion about relevant matters and where we settled was the determination of several questions to which Victoria Police have raised a jurisdictional objection and I note that they have addressed those in their submission.  And the applicant has had an opportunity to respond to those and we are here today, because there is a request to have further oral submissions made.

PN8          

And presumably, separate to the jurisdictional matter parties are happy to have the substantive questions resolved by the materials already on the record by the papers already on the record.  Is that correct?

PN9          

MR BALDINI:  Yes.  We're in the Commission's hands.  If the Commission would look some closing comments we are certainly happy to make some brief comments in relation to the - to summarise our case.  They would, of course, be brief.

PN10        

THE COMMISSIONER:  Thank you.

PN11        

MR BALDINI:  And we would rely on our written submissions.

PN12        

THE COMMISSIONER:  Mr Garozzo, is that the case?  That separate to the jurisdiction issue or submissions, you're content to rely on the papers?

PN13        

MR GAROZZO:  My position on that would be very similar to Mr Baldini's.  I propose, if you - some very brief comment, mainly in relation to matters that arose out of the course of the PFA's reply submissions.

PN14        

THE COMMISSIONER:  Thank you.  Now, this issue of jurisdiction, of course, does need to be determined prior to the consideration of the questions going to the substantive issue regarding the questions that are the subject of the submissions.

PN15        

The respondent has provided submissions regarding jurisdiction.  Mr Baldini, you have responded.  I will listen to oral submissions on the issue of jurisdiction and we will take the matter from there regarding the need, if any, for any submissions in reply or any further materials before we move on.  So Mr Garozzo.

PN16        

MR GAROZZO:  Thank you, Commissioner.  Just by way of updates, in Victoria Police's written submission it was mentioned that there are, just by coincidence, two other disputes proceeding before the Commission that are at the arbitration stage that raise effectively identical jurisdictional issue.  one of those was before Platt C and the other before Bell DP.  Just to update you, Commissioner, to the extent you are not aware, the matter before Platt C has now resolved.  That's C2022/473.

PN17        

THE COMMISSIONER:  Yes, I am aware.  Thank you.

PN18        

MR GAROZZO:  Thank you.  And the matter before Bell DP is on for hearing on 25 May.  As to the issue that's been raised, one thing I would submit is that it's not a jurisdictional objection per se.  Victoria Police doesn't seek to avoid the operation of this clause.  You will have seen, Commissioner, from the material that Victoria Police (indistinct) the cause and treats it as valid and accepts that there might be legitimate disputes about how it applies in a particular case.

PN19        

The issue becomes when the matter proceeds to a dispute before the Fair Work Commission and there is this jurisdictional issue that's raised.  So it's raised for you information as part of Victoria Police's obligations (indistinct) but minus (indistinct).  As you've referred to, Commissioner, Victoria Police has filed some relative detailed submissions stepping out the provisions of the relevant legislation and the (indistinct) and the way that it interacts with the Fair Work Act and some of the authorities that have considered that interaction previously.

PN20        

I don't intend to go into any detail beyond what's in this submission, unless you have any questions about that. The only thing that I - the only point that I would make is in relation to the Police Federation's reply submission where they press the jurisdictional issue and Mr Baldini said that it's not a matter of that promotion, which of course is the relevant subject matter that's carved out of the referral of power, but it's about a progression.  I would just note, I suppose, you are bound to note that to the extent that what the PFA is seeking on behalf of its members is for Senior Constables Merritt and Schauk to be taken as having progressed between the ranks of constable and senior constable at an earlier stage than they in fact did.

PN21        

It's a little difficult for me to see, with respect, how that isn't a matter that would pertain to their promotion.  But beyond that I don't have anything further to day on the issue of jurisdiction unless there are any questions.

PN22        

THE COMMISSIONER:  So essentially you're saying it's - because of the carveout, it's essentially an interpretation of whether promotion includes those increments.

PN23        

MR GAROZZO:  Yes.

PN24        

THE COMMISSIONER:  Mr Baldini, on this issue of jurisdiction?

PN25        

MR BALDINI:  We note that Victoria Police in their submission say that they take no position regarding the jurisdiction, so I certainly note that Mr Garozzo's comments that this is not a jurisdictional objection nor are they saying the clause is invalid and certainly we would say that that's very - that in where neither party objects to the jurisdiction, then - I'm sorry, if I could just rephrase that, it's curious that all of the submissions have been made in the context of Victoria Police not objecting to the jurisdiction.

PN26        

And we say that the Commission should pay no great weight to them, but in any case treat the submissions as needing to reach a very high bar before they are given any ability to interfere with the normal operation of the Commission.

PN27        

THE COMMISSIONER:  Mr Baldini, I'm not sure that's correct. Mr Garozzo is saying that the Commission doesn't have jurisdiction to arbitrate on matters pertaining to promotion.  And that the increments on which you rely fall under that.  Is that correct, Mr Garozzo?

PN28        

MR GAROZZO:  Yes.  That's correct.  I think that - - -

PN29        

THE COMMISSIONER:  So there is - sorry, go ahead.

PN30        

MR GAROZZO:  At least, Commissioner, it seems like there is a relevant issue about that that the Commission needs to determine.  Victoria Police doesn't press it, as Mr Baldini says, but it seems like it's a relevant issue.

PN31        

THE COMMISSIONER:  So it is going to have to be an issue that I need to deal with prior to deciding on the questions.  Because this has been raised as a jurisdictional issue, so I'm going to have to deal with it first in my consideration of this matter.

PN32        

MR BALDINI:  If Victoria Police presses those submissions then we will certainly have to respond. In any case, we don't believe that those submissions are correct in the way they portray the operation of the agreement.  If Victoria Police's (indistinct) jurisdiction went to its logical conclusion then entire salary structure in the agreement would be void as it provides different salary to members who have been promoted to different ranks.

PN33        

So Victoria Police in saying, 'Well, anything to do with promotion can't be in the agreement', then none of the salary structure can be in the agreement, because if a member is promoted, say, to the rank of sergeant or to the rank of senior Sergeant then the agreement says, 'Hang on, there's new pay rates applying to them.'  But we say that that misunderstands fundamentally the nature of what the agreement is doing.  The agreement is saying, 'You've got these duties and this set of responsibilities, you get this money.'  That's what any pay structure in any agreement does.

PN34        

So to say that anything to do with promotion must be null and void would render the entire salary structure in the agreement null and void, and much of the - anything relating to that salary structure is null and void.  And we say that that's a very bad mischaracterization of what the agreement says and the work does.

PN35        

the agreement doesn't fetter or do any work in the promotion of police officers.  there is no provision in the agreement which regulates or in any way affects how Victoria Police goes about promoting its members.  The agreement merely provides the salary advancement on an annual basis for members and members given different responsibilities, different roles in the organisation get different salary rates and that is it.

PN36        

So should a member decide not to promote a member to senior constable from constable, they wouldn't be eligible for the epaulettes, any of the other insignia of rank and any other benefits of the rank.  However, if they had been eligible for advancement to increment 5, with the criteria contained in clause 64.5, regardless of the decision of Victoria Police to promote or not promote them, they would get the additional money and it's of note that that's exactly what we're seeking here.

PN37        

We are not seeking that Senior Constables Merritt and Schauk be retrospectively promoted.  They've been promoted in due course and that's occurred, but what we're saying is that under the provisions of 64.5 the ought to have received the higher rate and there's no basis for Victoria Police not to have done so.

PN38        

And we should point out this argument is exactly consistent with Victoria Police's submissions in 5.7 and 5.8 where they describe increment 1 to 16 as a continual and just talk about people progressing though that and we'd have some additional comments to make in that (indistinct) we go to further submissions or further comments on the merit.

PN39        

But if Victoria Police has characterised this as you simply go from one increment to the next increment to the next increment, 1 through 16, that is in a sense exactly what we are saying.  Now certainly clause 64.5 has work to do.  As I say, it goes more to the merits of the case than the jurisdiction.

PN40        

So we'd say that the jurisdictional arguments are misplace.  We are not seeking to influence how Victoria Police promotes its members any way shape or form.  We are just saying if a member is given a certain role, certain responsibilities, then they have a certain pay rate and that's what is regulated by the salary schedule and in fact it would be no different to any other agreement with an incremental salary schedule.  So we'd say that there is no basis for a jurisdictional objection.

PN41        

All of the arguments that they've placed relate to the operation of promotion within the Victoria Police. We are seeking to disturb, influence or curtail or to do anything in relation to those.  This is about how much money people get paid and that is the application before the Commission today.  How much money should Senior Constables Merritt, Schauk and Sergeant Sordello have been paid.  And also note that the 'jurisdictional objections' that Mr Garozzo raised don't extend to Sergeant Sordello.  As I understand it they are solely in relation to - they're matters of Senior Constables Merritt and Schauk.  I see Mr Garozzo nodding.

PN42        

THE COMMISSIONER:  Can you clarify that, Mr Garozzo?

PN43        

MR GAROZZO:  That's correct, Commissioner.  It applies only to questions one and two which relate to Senior Constables Schauk and Merritt.

PN44        

THE COMMISSIONER:  Thank you, Mr Baldini.  Is that all you wanted to say about the jurisdictional issue at this point?

PN45        

MR BALDINI:  Yes.  Of course, we will rely on our previous written submissions as well.

PN46        

THE COMMISSIONER:  Of course.  Now, Mr Garozzo, you've heard what Mr Baldini has had to say and you can address me on this matter.  I'm also going to ask you if having raised the jurisdictional objection, having made the submission, having had a submission from the applicants do you seek a reply to that or are you content to make oral submissions today?

PN47        

MR GAROZZO:  The only thing I would seek to respond to about what Mr Baldini just said is to clarify that I'm certainly not submitting and it's not Victoria Police's position that the whole classification structure in the enterprise agreement would be null and void by operation of this referral act point.  The issue comes where the enterprise agreement deals with progression (indistinct) and in particular where that progression includes the movement between (indistinct) phrases seem to invoice the referral act issue in my mind, which is why it's been raised with the Commission.  As I've said a number of times, it's not pressed by Victoria Police.  It's a matter for the Commission and we raise it for that reason.

PN48        

THE COMMISSIONER:  So you're content with oral submissions.  You're not seeking to make any further responses or submissions on the issue of jurisdiction?

PN49        

MR GAROZZO:  No.  Thank you, Commissioner.

PN50        

THE COMMISSIONER:  Mr Baldini, did you want to make any comments regarding your application?

PN51        

MR BALDINI:  This is other than comments on the jurisdiction?

PN52        

THE COMMISSIONER:  Yes.

PN53        

MR BALDINI:  Yes.  Some brief comments.  So anyway that this case is expressed, the three members did not have their previous service recognised - all of their previous service recognised.  They certainly had in each case part of their previous service recognised.  In each case, Victoria Police decided to leave each member on the one increment for over 23 months.

PN54        

So when you recognise the previous service Constables Schauk and Merritt were left on increment 4.  That is the increment you have when you have three years' service for over 23 months.  Similarly Sergeant Sordello was left on his increment for over 23 months.  We say there's no basis for the actions of Victoria Police in the agreement and no basis for the rule they seem to have invented.  For Schauk and Merritt, the rule invented was you have to wait for 12 months from graduation to be eligible to move to senior constable.

PN55        

For Sordello it was when you re-engage you must start at the beginning of your increment no matter how much time you spent at that increment.  And we say there is no basis for these rules that they've invented and each rule restricts the operation of the agreement.  It's not open for any party to an agreement to decide they'll only partially apply the agreement, or invent rules that allow them to pay only part of what an agreement requires.

PN56        

This is what Victoria Police has done.  They haven't at any point explained any basis for the rationale of what they're doing from the wording of the agreement to support or explain that the rules that they've invented.  Simply that is because no such basis exists, but that nonetheless is what they've done in terms of what they've paid these three members.

PN57        

Principle 3 of Berri and we've extensively referred to Berri in our submissions.  But principle 3 refers to what a reasonable person would understand by the words the parties have used to express their agreement.  In our submission, it is clear a reasonable person would understand that the Federation of Victoria Police intended to recognise previous service and that is simply what we are saying Victoria Police ought to have based their decisions on payment on.

PN58        

Just on question 1, just a couple of comments.  We're puzzled by Victoria Police's submissions on question 1.  if, as they say, the classification payable in the agreement applies for constables 1 through 16, then Senior Constables Merritt and Schauk ought to have been or were entitled to progression on the anniversary of their recognised service, which would have included the recognised service from Western Australia and South Australian Police forces.

PN59        

So even on the respondent's construction of question 1, Constables Merritt and Schauk should have moved when we say they out to have moved.  The other puzzling aspect it that Victoria Police's submissions appear to render clause 65.4 redundant. It's got absolutely no work to do.  And that's clearly not the case. And Victoria Police also says that 64.5 merely bestows an eligibility.  And we would say how would Victoria Police not act on a eligibility once that eligibility is attained?  Is someone is eligible then it's incumbent on Victoria Police to act on that eligibility.

PN60        

On question 3, Victoria Police seeks to isolate clause 64.11 from the (indistinct) agreement and states that clause 21 is not relevant.  We submit that's just an artificial construction that cannot reasonably be deduced from the meaning of the agreement.

PN61        

And again, Victoria Police has produced no argument that demonstrates the basis of the construction that they have put on the clause.  they have said we don't have any basis, but they have no basis either.  And given that they have put no basis for the restriction that they have placed, then the Commission should look to the meaning of the agreement which is simply previous service should be recognised.  So just to conclude there is no support for their actions.  There is no support in the wording of the agreement for what they've done in terms of the way they've paid Senior Constables Merritt and Schauk and Sergeant Sordello and we renew our request in accordance with the closing paragraphs in our submissions that they be paid in accordance with the dates that we submitted, which would simply recognise their previous service and by way of an aside we are seeking they be paid and there are no submissions in any of our material about their promotion.

PN62        

THE COMMISSIONER:  Thank you, Mr Baldini.  Mr Garozzo you've heard what Mr Baldini has had to say.  Would you like to respond (indistinct)?

PN63        

MR GAROZZO:  Yes.  Thank you, Commissioner.  On question 1, that dispute is effectively about whether a constable becomes entitled to immediately progress from constable to senior constable pursuant to section 64.5 (indistinct) or whether as Victoria Police says, they become eligible to make a progression from constable to senior constable when that clause is satisfied, but the progression will take place in accordance with 64.1 on the anniversary of their application.

PN64        

As to that latter issue, Mr Baldini said that that it would render the construction that Victoria Police urges on the Commission render clause 64.5 redundant, because it would mean that - excuse me, sorry.  I think he said that on Victoria Police's interpretation of 64.1, Constables Merritt and Schauk should have been pressed because their prior service with the other relevant police forces should have been taken into account.

PN65        

Clause 64.1 very clearly applies, in my submission, on their application and that is their appointment to Victoria Police.  I don't think there's anything in the text or structure of the Act that would suggest to the contrary.  Mr Baldini in paragraph 23 of the reply submission filed on 11 April says that once eligible a constable is in entitled to progress and he echoed that submission just now by saying that once an officer becomes eligible Victoria Police needs to act on that eligibility.

PN66        

Victoria Police is submitting that the constable becomes eligible in accordance with clause 64.5 to progress in accordance with the entitlement to do so on the anniversary of their appointment pursuant to clause 64.1.  In their reply submission Mr Baldini relies on the words 'entitled to progress subject to certain requirements which is in clause 64.1 as in support of his argument that that - - -

PN67        

THE COMMISSIONER:  Excuse me, Mr Garozzo.  Which paragraph in the applicant's response - - -

PN68        

MR GAROZZO:  That's 23.

PN69        

THE COMMISSIONER:  Thank you.

PN70        

MR GAROZZO:  So you will read there Mr Baldini says:

PN71        

Similarly, Victoria Police's reference to eligibility in subclause 64.5 would fail on their interpretation as subclause 64.1 provides that constables will be entitled to salary progression subject to meeting the eligibility requirements

PN72        

And then goes on to say, 'Once eligible, a constable is entitled to progress', but that's undue straining of the words of 'subject to the requirements' in the clause.  The (indistinct) of words is they will progress, subject to the other requirements and in the case of an officer seeking to progress from the rank of constable to senior constable, that requires them first to be eligible in accordance with clause 64.5.

PN73        

In my submission, Mr Baldini's - well, the Police Federation of Australia's construction of clause 64.1 and 64.5 unduly complicates what is quite a straightforward matter.

PN74        

Finally in relation to question 1, this is dealt with in the written submission that Mr Baldini made some comments about it in the reply.  This issue of - it's set out in paragraphs 5.5 to 5.8 of Victoria Police's written submissions dated 4 April, it refers to schedule A of the enterprise agreement which sets out the progression, 16 progression points from the rank of constable to leading senior constable, through first constable and senior constable.

PN75        

In grouping those ranks together as level 1, progression through each increment in Victoria Police's submission is regulated by clause 64.1.  That's in relation to all of the constable ranks; constable, first constable, senior constable and leading senior constable.  Mr Baldini's submission denies this and he says at paragraph 20 of the reply submission, 'When the enterprise agreement speaks of constable it's dealing with something separate to first constable, senior constable and leading senior constable.

PN76        

But in my submission that argument is destroyed on the terms of clause 64.5 itself, because that clause deals with progression from constable to senior constable, yet as can be seen from schedule A of the enterprise agreement - do you have a copy of that, Commissioner?

PN77        

THE COMMISSIONER:  Yes.  Is that page 110 of the enterprise agreement?  Is that what you're looking at?

PN78        

MR GAROZZO:  As can be seen from that, the progression from constable to senior constable as clause 64.5 treats it moves through the rank of first constable.  So on that analysis alone it can be seen that clause 64.5 is dealing with something - and clause 64.1 for that matter is dealing with something broader that a constable's (indistinct) and in my submission it's clear and based on the other contextual matters that I've set out Victoria Police's written submission and I won't take the Commission back through now, includes all four of those constable ranks which are treated as level 1 of schedule A of the enterprise agreement.

PN79        

So to conclude on that point, clause 64.1 applied to the progression of Constables Merritt and Schauk to the rank of senior constable which they now hold.  That progression shouldn't be backdated, and the answer to question 1 should be given accordingly and that's set out in the written submission.

PN80        

As to question 2, there seems to be some confusion between the parties about this question.  I'm not sure I completely understand what the PFA's argument is.  Mr Baldini (indistinct) written submissions of Victoria Police choosing to recognise only partial service And to ignore other parts of the service of Constables Merritt and Schauk, but as is clear from the material, including the material that the PFA have put before the Commission, both Senior Constables Merritt and Schauk prior service has been recognised.

PN81        

Senior Constable Merritt had been an officer of the WA police force for three yeas, 11 and half months.  That was recognised and she was place on increment level 4 back dated to the time of her appointment to Victoria Police.  Similarly, Senior Constable Schauk had three years and 10 months of service witness the South Australian police force.  He was accordingly placed at increment level 4 and that was backdated to his appointment.

PN82        

Those were the increments that the Police Federation argued that Victoria Police should have placed the senior constables at.  So what I perceive Mr Baldini to be submitting is that, yes, it was appropriate to appoint the members at those increments, recognising their prior service but having done so, they became eligible for a promotion to senior constable in accordance with clause 64.5 almost immediately upon being appointed to Victoria Police.

PN83        

And I understand that argument, but I think that's there is not a dispute about that . That just takes us back to what the correct answer to question 1 is, which we've already been through.  So my submission on that is that there's no dispute in relation to question 2, properly characterising that the Commission should decline to answer it accordingly.

PN84        

On question 3 in relation to Sergeant Sordello and as I confirmed, there's no jurisdictional issue raised in relation to this aspect of the dispute.  The question is does the reference to the 12 months in clause 64.11 include prior service.  I won't go through it in detail.  I think the written submission that has been filed on Victoria Police's behalf sets it out in a detailed way.

PN85        

Only to note that Mr Baldini submits at paragraph 35 of their written submission in reply that because Victoria Police's submission 'simply ignores' the arguments advanced by the PFA, those arguments should simply be accepted; that is, the PFA's arguments should simply be accepted.  That's not the case.  Those arguments were not ignored.

PN86        

The construction of the enterprise agreement that the PFA has put forward have been disputed by Victoria Police, which has put forward what I submit is a far preferable and more logical construction of he enterprise agreement.  And the arguments that the PFA have put forward have been discarded by Victoria Police as being without substance.  I submit that the Commission should deal with them in the same way.

PN87        

In short, clause 64.11 deals with time spent at a particular progression point while not being paid.  Not with a period of service.  It says that if an officer has spent 12 months at a particular progression point even though they haven't been paid for the entire period which is otherwise a requirement in order to progress, Victoria Police may nonetheless progress them.  So as I sought to highlight be reference to the clause in the predecessor - the 2015 enterprise agreement which I will refer to in the submission, the purpose of that clause is clearly to confer a discretion or inability on Victoria Police to, in an appropriate case, progress an officer who otherwise because of the requirement that they be on pay at the progression for the entire 12 months wouldn't otherwise progress.

PN88        

The PFA's submission seeks to leverage the admittedly unclear wording of the clause to produce what I submit would be an absurd outcome which would be that the Sergeant Sordello could be taken to have been at the progression point for 12 months or more in circumstances where the last time he was a sergeant in Victoria Police for the relevant period was almost a decade prior to his appointment.  So I submit that the Commission should not follow that construction and should answer questions really accordingly.  Those are the matters I wish to submit on, Commissioner.

PN89        

THE COMMISSIONER:  Thank you. Mr Garozzo.  Mr Baldini?

PN90        

MR BALDINI:  Yes, thank you.  Mr Garozzo talks about 64.1 referring to the anniversary of the appointment.  As pointed out in principle 6 of Berri, enterprise agreements are not instruments which should be treated as though they are Acts and an overly technical approach to the interpretation should be avoided.  We would submit that that's exactly what is occurring here, that the parties have entered into a scheme by which previous service should be recognised and Mr Garozzo is saying, 'Here's one word that we can ignore that.'

PN91        

And I would submit that that is an overly - well, it's not only a technical objection, but it's an objection that simply relies on one word to put side the intent of the parties that's been clearly identified as recognising prior service.

PN92        

Mr Garozzo then goes on to say that the prior service of  Senior Constables Merritt and Schauk was recognised, but in actual fact it wasn't.  So Senior Constable Merritt had three years, 11 and a half months service.  Three years of that was recognised.  11 and a half months was not.  Senior Constable Schauk had just over three years, 11 months of service.  Three years was recognised.  11 months was not.  And Mr Garozzo made a - or characterised us as seeking that Senior Constables Merritt and Schauk ought to have advanced on as soon as their four years was up.  That's not our submission.

PN93        

Our submission is that clause 64.5 sets out the requirements for advancement from increment 4 to increment 5 and one of those criteria that (indistinct) must complete the senior constable qualifying - sorry, the required components of Victoria Police Education Program, which neither Senior Constables Merritt or Schauk completed at that point.  They completed it some time later but we are saying once they had completed those then the three criteria in 64.5 were satisfied.

PN94        

That is, they completed the requirement components.  They had four years' service and over four years' service at that stage counting both their previous service and their Victoria Police service. And they were of a satisfactory performance and that is the date that we put in our submissions that they ought to have progressed to increment 5.  That is the date that they completed the education requirements for that position.

PN95        

Mr Garozzo has said that their position is more logical.  I've submitted earlier that Victoria Police hasn't pointed to anything within the wording of the agreement which would justify their interpretation of what they've - of the actual salary payments that they've made.

PN96        

Now, with the exception of the issue of that term 'anniversary of appointment' which I've referred to earlier, there is still nothing from Mr Garozzo or Victoria Police to explain what it is from the construction of the agreement which justifies them simply ignoring 11 months of service.  It's the same with Sergeant Sordello.  He is not having 11 and half months service recognised for the purposes of advancement.

PN97        

Mr Garozzo says we are seeking to leverage the words and it's absurd.  But it's not absurd at all.  It's simply what the agreement requires.  Sergeant Sordello could have come back as an inspector.  So he was well and truly qualified and capable, not only as a sergeant, but he could have easily come back as a senior sergeant or an inspector.  So to suggest that that 11 and a half months should simply be waived because there was an interval of time has no basis and, in fact, is contrary to the scheme that's in this agreement which is a scheme of recognition of prior service and that 11 and a half months simply hasn't been recognised.

PN98        

It's coincidental that in all three members it's a period of over 11 months that hasn't been recognised, but we say that that's fundamentally unfair but also runs directly contrary to the scheme that Victoria Police and the Federation have agreed in making the 2019 agreement; that is, prior service should be recognised.

PN99        

THE COMMISSIONER:  Thank you, Mr Baldini.  Do the parties have any other issues they want to raise as this point?

PN100      

MR BALDINI:  There is one thing that I think may - as I've been thinking about it, we raised the issue of the - this is going back to the jurisdictional argument, that if we - we said that on Victoria Police's construction of the jurisdictional objection that they don't make, then the entire classification schedule within the agreement would be rendered null and void.  Because if you start on a chain of logic you must follow it through to its conclusion.  Mr Garozzo rejected that but failed to say why he rejected that.

PN101      

We say that he has an inconsistent position and the Commission ought to note that inconsistency in its considerations of the jurisdiction.

PN102      

THE COMMISSIONER:  Thank you.  Did you want to make a response to that Mr Garozzo or did you want to provide something in writing after the hearing on that issue, or what's your position.

PN103      

MR GAROZZO:  I think I can address it quite briefly, Commissioner.

PN104      

THE COMMISSIONER:  All right.

PN105      

MR GAROZZO:  I'm fairly sure that I explained my position before in relation to the classification structure issue was that it's not suggested and it certainly wouldn't be the position of Victoria Police and I wouldn't submit that the setting of pay rates for police officers would be contrary to the promotion exclusion in the Referral Act.  The issue comes when it deals with progression between increments that lead from one rank to another.  that's what raises the issue and that's the reason why.

PN106      

THE COMMISSIONER:  You mean jumping a position?

PN107      

MR GAROZZO:  Yes.

PN108      

THE COMMISSIONER:  Is that clearer, Mr Baldini?

PN109      

MR BALDINI:  No, not really, because as we said we are not seeking for the Commission to interfere with the process of promotion. We are simply saying that under the terms of the agreement, clause 64.5 says if you've got four years service you've satisfied the requirements and your good service, then you go up to anther increment.

PN110      

That's completely different to what Mr Garozzo is saying.  And if Mr Garozzo is saying, 'Well, hang on, as soon as you reach the word promotion, then he whole - then everything to do with it is off', well, then that - if you take that to its logical conclusion somebody sitting at senior constable increment 10, for instance, get's promoted to sergeant.  Great.  That's the operation of Victoria Police and Victoria Police does it, and we come in and say, 'Well, because that promotion, now you get this higher pay rate.'  Well, is that something to do with promotion?  Yes, it is.  Because it recognises a promotion that Victoria Police has made.  So Mr Garozzo's logic then that would - if it's covered or mentioned then it wouldn't apply.

PN111      

So it's an attempt on our part to simply say that there is an absurdity being introduced in fancy clothing.

PN112      

THE COMMISSIONER:  Thank you, Mr Baldini.  Do the parties with to raise any other issue?  You have presumably, and correct me if I'm wrong, all the relevant matters relating to the jurisdictional issue and the substantive questions, you've covered everything you wish to cover.  Is that correct?

PN113      

MR BALDINI:  Yes.  Thank you.

PN114      

MR GAROZZO:  Yes, Commissioner.  Thank you.

PN115      

THE COMMISSIONER:  Thank you, parties.  On the basis of that I reserve my decision in this matter and provide an written decision in due course, addressing both those issues.  So thank you for your time. It's been a long-running matter of sorts and I appreciate the patience particularly of the individual service personnel involved.  So thank you very much and the Commission is adjourned.

ADJOURNED INDEFINITELY                                                          [10.50 AM]