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Fair Work Act 2009                                                    




s.739 - Application to deal with a dispute in relation to flexible working arrangements


The Police Federation of Australia (Victoria Police Branch)


Chief Commissioner of Police T/A Victoria Police



Victoria Police (Police Officers, Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2019




10.00 AM, TUESDAY, 23 AUGUST 2022


THE DEPUTY PRESIDENT:  Good morning, I might start by taking appearances, please.


MR G STEPHENS:  Good morning, Deputy President, Mr Guy Stephens for the applicant.


THE DEPUTY PRESIDENT:  Morning, Mr Stephens.


MR A POLLOCK:  If the Commission pleases, Pollock, initial A, of counsel, instructed by Corrs Chambers Westgarth, for the respondent.  I understand permission has been granted.


THE DEPUTY PRESIDENT:  Permission has been granted, yes, thank you, Mr Pollock.


MR POLLOCK:  Thank you, Deputy President.


THE DEPUTY PRESIDENT:  Where do we want to commence then, parties?  Are there any housekeeping matters that need to be addressed before we begin?  I can say I've got the court book, I've got my copy.  Everything appears to be in order, but the parties might be telling me something different before we commence.


MR POLLOCK:  Can I raise just one matter, Deputy President.  It is of little consequence, but I raise it for completeness.  The digital court book that I understand the Commission prepared appears to have made a small number of amendments, shall we say, to the physical materials filed.  They are not of any significant consequence.  There are headings that are partially obscured and so forth.


THE DEPUTY PRESIDENT:  Some things have been cut off?


MR POLLOCK:  I don't think there is anything that's material in the context of the evidence that we need to advance, and I might have my instructing solicitors send a note to chambers and to my learned friend to set out a list of those matters.  Insofar as there's any disagreement between the parties as to whether anything turns on it, then we can address you before the close of play.


THE DEPUTY PRESIDENT:  Yes.  If perhaps that note could be sent to the applicant's team beforehand and then, if there's no issues, then I can get a joint email or at least an email forwarding that saying, ideally, no issues.


MR POLLOCK:  Yes, thank you, Deputy President.


THE DEPUTY PRESIDENT:  In terms of how we're going to go through today, I am certainly anticipating that we will be finishing, I would have thought comfortably, by the end of the day, although you might have some different views on how much is going to be required for evidence.  Perhaps, Mr Stephens, that's probably more in your camp there, I suspect, in terms of the length that might be required on evidence.


I'm certainly not holding you to it, but what I had in mind is that we would go to about 12.45, plus or minus a bit, depending on where you might be in the middle of, and then we would break there and then - I don't know whether we will be finished evidence before lunch, but, if we're not, we will continue going, but with a view that we would certainly be finishing on oral closings by the end of today.  You might have had discussions amongst yourselves or you might have had different assumptions about where that might end up as well.


MR STEPHENS:  Yes, I think that timeline would be suitable.  I don't imagine us being here beyond today, Deputy President.




MR POLLOCK:  Indeed, and certainly my learned friend and I have had a brief discussion before court this morning.  Without verballing him too much, and allowing for the vagaries of counsel's notoriously poor predictions of time, I would have thought, Deputy President, that we would comfortably have concluded the evidence by lunch time.  Let's hope that's not some famous last words, but that's certainly the intention.  Depending on where we do finish, if we are, you know, in the hour of 11 or on 12, then we might consider whether or not it would make sense to bat on straight into closing submissions before lunch or break early.


THE DEPUTY PRESIDENT:  That's all fine.  I think, Mr Stephens, we might start with you.  Is there anything you want to address sort of by way of opening or were you intending to get into the evidence, so to speak?  Given that we have got a little bit of time, I think, up our hands, I am happy to be a little bit flexible on it.


One thing I wouldn't mind perhaps addressing at the get go - because I don't want to get to the end of it and have it as an issue that might have caused the proceeding to be conducted differently - is there a material difference in the construction on any of the legal principles that are going to govern the dispute?


I notice Victoria Police have a slight difference on what it talks about in whether there's a balancing exercise required or whether what's required is more strictly an assessment and whether there are reasonable grounds.  I'm not sure whether the rubber hits the road in the dispute before us as to whether that's going to make a difference, but I just wouldn't mind hearing from the parties if they think it might make a difference because it might be worth just exploring that just briefly before we continue on.  I am happy for either of you to go first on that one.


MR POLLOCK:  Deputy President, I am content to address you very briefly on that issue, and I thank you for raising that issue because I think there is at least some prospect that that will be a contentious point at the back end.


We don't put the case so highly as to say that there's no balancing exercise to be conducted at all, and I think you will note from my written submission filed in advance that we accept that clause 14.7 necessarily imports a degree of a balancing exercise, or at least requires the Commission to take into account - requires the employer to take into account and, as a result in the arbitration, the Commission to take into account the interests of the employer on the one hand and the employee on the other.  If I can just take you to that provision briefly, Deputy President.


THE DEPUTY PRESIDENT:  Yes, and I think that's plain on that discussion relating to 14.7, but, by the time you get to 14.9, is it a different matter?


MR POLLOCK:  Well, that's right, and really the nuance in this argument is this.  As I advance the case, there is consideration that is required in 14.7.  There must be a discussion of the request of the employee and an attempt to reach agreement in the circumstances having regard to those matters, but, as one sees in 14.9, and one also sees the same expression find voice under section 65, the question that engages the Commission here is whether or not the employer had reasonable business grounds.


Now, in my submission, determining the question of reasonableness might have regard to, and might need to draw upon, an assessment of that balancing exercise, but it is not - to be clear, it is not some kind of balance of convenience assessment, Deputy President, or almost a de factor balance of probabilities, that if you were 50 per cent plus one, or some actual persuasion of the substantive fairness one way or the other, that you would determine the reasonableness of the business grounds on that footing.


If I can illustrate this quite plainly, you might form the view at the conclusion of the evidence that - I think I set this out in the submissions - you might have a great measure of sympathy for First Constable Azmi's situation.  It might be that, looking at all the evidence and weighing those comparative considerations, you might, if you were standing in the shoes of Victoria Police, may be just tipped over to reach a different conclusion, but that does not answer the question of whether or not the business grounds that were advanced were reasonable.


It might be that that balance is tipped so far the other way that the grounds advanced are no longer reasonable business grounds, but there is, in my submission, a substantial piece in the centre of that Venn diagram where it might be still reasonable to have refused those grounds, albeit that, on the assessment of the evidence at the end of the day, you might have, in the employer's shoes, reached a different outcome in weighing those considerations.




MR STEPHENS:  Thank you, Deputy President.  To the extent that there is a requirement for some balance to be struck, I don't wholly disagree with Mr Pollock.  I would say that the superintendent in this case, who, as the decision‑maker, was required to consider that balance in order to form his decision of the reasonable business grounds and in order to form what those reasonable business grounds were, and that assessment is something that is picked up by Bissett C in her decision at paragraphs 78 and 79, Deputy President, to say that it's difficult to see how there shouldn't be some balancing done in such circumstances.


The relevance of that to the matter before the Commission today is that when deciding on whether the superintendent had reasonable business grounds to reject the flexible working arrangement request put forward by First Constable Azmi, all those considerations, his personal circumstances and, as we will go into, the operational requirements at the time, must be, in some ways, or had to have been in some ways, balanced by the superintendent.


THE DEPUTY PRESIDENT:  Yes.  The way I have come at the provision, and I'm not sure whether this is necessarily different to what's gone on before, is that clause 14.2 of the agreement I actually read as more beneficial in some ways for the employee compared to section 65 of the Act.  The Act has the language of it's got to be circumstances, and then there's a request because of those matters, and then they each sort of converge - the circumstances are listed, and they each converge in meeting the eligibility requirement and state that the employee may then request a change in working arrangements, including a change to work location relating to those circumstances.


Now, the reason I'm sort of exploring this a bit is that it's not in dispute, as I've understood it, that First Constable Azmi met those requirements at all.  That's how I apprehend it.  It's not disputed that he hasn't triggered that.  What is disputed is whether there are reasonable grounds to refuse it.


In those circumstances, I am not so sure whether there is an import for any further exploration of whether the circumstances of the employee here are required because, once that threshold is met, as I've been looking at it, it then moves on to the 14.7 discussion matters, and there's plainly balancing that needs to go on there - I accept that - but that's at the discussion level, but if the discussion levels fall over, then I've looked at it to see that 14.9 then goes to, on the assessment now, if there's going to be a refusal, that refusal has got to be on reasonable grounds.


By that stage, I've almost taken it's a given that the request is otherwise a proper request, and I'm not necessarily - I don't think I'm even required to then explore whether that request is more or less worthy than different requests that might be of the same nature, you know, whether a different request might be based on the retirement ground.


The only thing - for example, the part that might trouble me is if, in the back door, this hearing does require an exploration of the personal circumstances of the officer here or not, whereas I've understood the matter as proceeding on the basis that he meets those requirements, there is no exploration as to whether he's entitled to make the request and it's a proper request.  What is in issue, as I have understood it, is that the refusal is one on reasonable grounds.


It might be, as I think I indicated, and it's often the case it makes no difference, but, in the event that it is going to be some difference there, I just thought it would be worth explaining how I have been viewing the operation of those provisions there.


MR STEPHENS:  Yes, I have nothing further to say to that.




MR POLLOCK:  Deputy President, the observations you make, I think, accord with the construction of clause 14 that I had advanced in the written submissions, and perhaps if I can - just for completeness and to ensure that there is no confusion here, I would take the view that the observations you make there - you will see at paragraphs 18 and 19 of our written submissions this weighing exercise issue is dealt with, and I make those observations contrasting the particular clause in play in the Brimbank case, which was a decision of Wilson C to which Bissett C had some regard in the Constable AB case.


The observations of the original assessment is directed towards the business grounds themselves.  That assessment was conducted objectively with reference to the terms of the arrangement in light of the circumstances impacting that relevant business at the time.  Whilst clause 14.7 - that is the discussion requirement - requires consideration of the needs of the employee, the consequences of not granting the request and the alternatives, and it's in that vein that I advance that submission that it, to some extent, involves that weighing exercise.


Bissett C makes that observation and we don't cavil with that, but - and this really grapples with, I think, an illustration of the point or the observation you were making, Deputy President - clause 14 doesn't go so far as to render unreasonable what would otherwise be a plainly reasonable ground simply because of some subsequent weighing after the door's already been opened for qualifying to make the request based on some assessment of the gravity of that employee's set of circumstances.


Provided the ground is reasonable, it's not for you to conduct some kind of after the fact assessment of how you might have weighed that request.  I think Bissett C makes that very observation in the Constable AB case, that it's not an exercise in reconducting that assessment process.


THE DEPUTY PRESIDENT:  Yes.  There might be, just in terms of the practicalities of the hearing today, and I think, Mr Pollock, this might be more directed at you, that the consequences that might flow of that is that I don't anticipate there will be any significant exploration of the first constable's personal circumstances because - - -


MR POLLOCK:  There's not.  There isn't, Deputy President.  There's a short brace of questions that I need to put to him not concerning his personal circumstances but concerning some of the issues he raises in his reply evidence about the nature of Transit South's operations.




MR POLLOCK:  And that's just simply on the basis it arises in reply and needs to be put to him, but, that aside, that's all that I had in cross-examination.  There's some questions of weight which I was initially considering addressing in closing, but given what's fallen this morning, they may not need to be addressed at all.


THE DEPUTY PRESIDENT:  While I've got you there, one other matter that did occur to me, and I'm not too overly critical of correspondence written at the time, but there was mention in Victoria Police's grounds of - grounds - I'll be careful in overstating that - that there was a query raised or a question raised about whether the first constable's wife might be returning to work.




THE DEPUTY PRESIDENT:  That would appear to fall more within the personal circumstances issue and I'm not sure where that will necessarily fit into the reasonable grounds.




THE DEPUTY PRESIDENT:  Now, I'm not going to pin you to that, but that would possibly seem a consequence of - - -


MR POLLOCK:  I think there's some force in that observation and, in any event, Deputy President, as is apparent on the face of our materials, that's not the killing ground of this case.  The gravamen of the business grounds, and we, of course, rely on them in totality rather than simply asserting that each individual one is of itself sufficient, but it's fair to say we don't place primary reliance on that factor.


THE DEPUTY PRESIDENT:  Understood.  All right.  Mr Stephens, nothing arising from that that causes you to have a burning desire to jump on your feet?


MR STEPHENS:  No, thank you, Deputy President.


THE DEPUTY PRESIDENT:  In that case, Mr Stephens, I'm happy to begin with your - were you intending to go straight into evidence or did you want to address me on matters first?


MR STEPHENS:  I might make some general comments on opening, Deputy President, if that's okay.


I think it's important to recognise that the matter before the Commission today is a dispute arising under the enterprise agreement with regard to a flexible working arrangement.  It's not, or it shouldn't be, a large issue, albeit that it's gotten to this point.


It has been made clear that First Constable Azmi has the right to request this flexible working arrangement and, as you have correctly pointed out, the obligation is on the respondent, Victoria Police, to point out and to make clear on reasonable business grounds why it rejected that application at the time that it made that rejection.  We say that that was characterised in that 3 February letter that will be put forward into evidence and the rejection should be considered at that time in the circumstances at the time.


I have, in written submissions, drawn your attention, Deputy President, to the previous cases that have considered this question before, that being the Constable Emery and Constable AB decisions, noting also the fact that the Constable Emery decision, or at least the principles established there were not disturbed on appeal.


I think those principles are of particular relevance in this matter, specifically the requirement for the reasonable business grounds to be based in some sort of objective fact as at the time and the requirement for the employer to point to the fact that the inconvenience or the reasonable business grounds for the rejection point to some cost, more than just an arbitrary figure or arbitrary sort of demonstration of inconvenience, but something that causes an actual impact on the operations of Victoria Police, or is an actual business ground above and beyond some inevitable small impact.


We say that the rejection letter doesn't do this and it doesn't meet these requirements and, in fact, the only quantifiable connection it brings is in terms of these van shifts, which we will discuss further, and, indeed, not only is this the case, but, as First Constable Azmi's evidence will demonstrate, it's unlikely that even with his flexible working arrangement, what amounts to the possibility for two van shifts per fortnight may not have even had any real impact on Victoria Police's ability, or Transit South's ability, to put out an additional van or to actually, you know, put wheels on the road in terms of its operational policing requirements.


I was going to point to First Constable Azmi's wife's condition or the fact that that's raised as a business ground, and I don't think I need to address that in any great detail, other than to say we don't believe it's relevant for the same reasons that you have pointed out already, Deputy President.


In summary, it is our position that the rejection letter or the rejection of First Constable Azmi's flexible working arrangement occurred at the time that the rejection letter was provided to him, which is 3 February, and it should be considered in the circumstances at the time, and the evidence that we put before this Commission will show that the business grounds that were sought to be relied upon in that letter, by any measure of reasonableness, could not be found to have been reasonable given the circumstances as they were at the time.


Thank you, Deputy President.


THE DEPUTY PRESIDENT:  I wasn't necessarily intending to give each person a say by way of opening, Mr Pollock, unless that's how - you prefer to do the openings and then we go into evidence.  I'm not terrible wedded to which order we go.  I was intending to hear the applicant's case first.  If you want to open when you start - - -


MR POLLOCK:  Deputy President, I certainly assumed that we'd get straight into the applicant's evidence.  Insofar as there's a need for a respondent's opening at that stage, I will address you on anything you would like to be addressed on, but I think we've got a reasonably good idea now of the terrain of the case.


THE DEPUTY PRESIDENT:  I think it's always prudent to get on with the evidence then.  All right.


MR POLLOCK:  Deputy President, just before First Constable Azmi is called, there was a short brace of objections that perhaps are no longer critical given where we have landed on the relevance of certain parts of this evidence.  I just thought it might be useful to deal with this at the outset before he's called into the Box.


THE DEPUTY PRESIDENT:  Sorry, these are objections from Victoria Police to the applicant's evidence, is it?


MR POLLOCK:  To the applicant's evidence.


THE DEPUTY PRESIDENT:  Have these been raised with the applicant?


MR POLLOCK:  They haven't, Deputy President.  I can indicate that they are all on the same basis and it's a relevance objection in circumstances where the evidence concerns impacts that arise after the request and after the refusal.  I can point out individual paragraphs and simply make the observation and you can deal with them as questions of weight, but there are several paragraphs within the witness statement that concern factual matters that arise well into 2022, that is, past the point of the request and past the point of the refusal.


In my submission, those are matters which simply won't assist you on any level, but also, given the observations you have made around, I suppose, the limited role of assessing whether the employee qualified for the clause, and we don't cavil with that - there is obviously evidence that he otherwise meets the requirements - there is additional evidence that goes into some ongoing effects that we say are not relevant to your assessment.


THE DEPUTY PRESIDENT:  Yes.  Can I just pause you.  There's a two-way complaint, as I have understood it.  Mr Stephens, am I correct in understanding that there's a complaint by the Association about evidence temporally occurring after the February letter as well?


MR STEPHENS:  Yes, that's correct, Deputy President.  I was intending to raise that as we moved along, but I think I am of the same view as Mr Pollock, not to put words in his mouth, and say that - - -


THE DEPUTY PRESIDENT:  He can put his own words in his mouth.


MR STEPHENS:  - - - evidence pertaining to circumstances of the operations of anything as they relate to Transit South after 3 February is not relevant and shouldn't be considered in determining this question of whether the superintendent had reasonable business grounds.


THE DEPUTY PRESIDENT:  Yes, I understand.  How much surgery do the parties anticipate is required of the evidence?  Perhaps I might get an indication - well, given that we are dealing with First Constable Azmi's evidence now, perhaps, Mr Pollock, you continue and it just might be that you identify the paragraphs that you wish to.


MR POLLOCK:  Deputy President, I can take you through the paragraphs, but I'm content for it to be dealt with on the basis that I can make submissions as to weight on that.  I think I've already telegraphed what we will say about it.  I don't think it's going to be the most productive use of time to take a red pen to - - -


THE DEPUTY PRESIDENT:  I would be happy if we can do it on that basis.  Mr Stephens, I won't quite hold you to that yet because, as I understood it, you might have had some wider objections, but if, when we get to your turn to make the same point about Victoria Police's evidence, it might be that you are content to adopt the process that Mr Pollock is, which is it's going to go in, but you're going to tell me about why I should have no regard to it at the end.  We can do it like that, but if it's going to affect, I guess, how you might run matters with the witnesses, then I suppose we'll have to cross that bridge when we come to it, won't we?


MR STEPHENS:  Yes, Deputy President.  I don't anticipate objecting to the evidence being put before the Commission, but flagging that I will have several questions about the veracity and importance - - -


THE DEPUTY PRESIDENT:  In which case, I'm duly on notice from both of you, and I think then we can call the first constable.

<SHAFIQUR AZMI, AFFIRMED                                                      [10.32 AM]

EXAMINATION-IN-CHIEF BY MR STEPHENS                           [10.32 AM]


First Constable Azmi, you have prepared two statements for this proceeding; is that correct?‑‑‑That's right.


Do you have a copy of those statements with you?‑‑‑That's right, your Honour.


Is the first statement 36 paragraphs with nine appendices attached?‑‑‑I'm not sure.  Is it okay, your Honour, I can have a look at that?‑‑‑That's correct.


Dated 16 June 2022?‑‑‑That's right.


The second statement is seven paragraphs with two appendices and dated 1 August 2022?‑‑‑That's right.


Do you rely on these as evidence in these proceedings?‑‑‑Absolutely.


Thank you, Deputy President, I seek that these be admitted into evidence.


THE DEPUTY PRESIDENT:  Yes, thank you.  I will mark as exhibit A1 the first witness statement - and I will do it by references to the court book - and the exhibits commencing on page 59 of the court book, being the witness statement of First Constable Shafiqur Azmi, and, likewise, I will mark as A2 the supplementary witness statement of the first constable commencing on page 98 of the court book and the attachments to that through to 107.




MR STEPHENS:  Thank you, Deputy President, no further questions.


THE DEPUTY PRESIDENT:  Thank you.  Just as a housekeeping matter, Mr Pollock, before we start, I just want to make sure - does anyone have a spare court book?

***        SHAFIQUR AZMI                                                                                                                     XN MR STEPHENS


MR STEPHENS:  I have a spare.


MR POLLOCK:  I  understand my instructor should have a physical copy of the court book.


THE DEPUTY PRESIDENT:  Thank you.  It did occur to me - well, we're not entirely lacking match fitness on in person hearings, but if that's the worst that we can - a five-second delay - then that's good, so thank you.

CROSS-EXAMINATION BY MR POLLOCK                                 [10.35 AM]


First Constable Azmi, just a very small number of questions.  Can I take you firstly to paragraph 35 of your first witness statement and that's on page 65 of the folder that's in front of you?‑‑‑I've got - - -


If you've got your statement, that's fine?‑‑‑Yes.


You will see there, you say:


When I made the application for a flexible work arrangement in October 2021 and when I received Superintendent Humberstone's letter in February 2022, we had only one van at Frankston.  The van was on the road patrolling every shift.




Then in your reply statement at page 98 of the court book, and this is paragraph 7, you say:


At Transit South 4 (that is Frankston) we have only one brawler van that we can use to transport individuals who have been detained by PSOs back to the station.


Senior Sergeant Billing is going to give evidence in this proceeding?‑‑‑Yes.


He says that, for months, and at the time in February, at the time of the response, in addition to the one divisional van, there was also access to a sedan to transport offenders in appropriate circumstances?‑‑‑We don't have a sedan, SUVs.

***        SHAFIQUR AZMI                                                                                                                     XXN MR POLLOCK


You disagree with - - -?‑‑‑We don't have a sedan, as I said, we have SUVs.


An SUV.  You would agree that there was an SUV that was also available to transport?‑‑‑Yes.


You would accept that?‑‑‑Yes, but we don't transport crooks, like offenders, in SUVs.  The brawler and the divvy van is only where 99 per cent of the time we transfer offenders.


So you would disagree with Senior Sergeant Billing if he said words to the effect of, 'If offenders are non-violent and are capable of being transported in' - - -?‑‑‑As I said, 99 per cent - - -


Let me finish the question?‑‑‑Yes.


You would disagree with Senior Sergeant Billing were he to give evidence that non-violent offenders who are capable of being transported handcuffed in a rear seat of a sedan or an SUV, that those offenders would be transported - - -?‑‑‑I already answer your question.


You disagree?‑‑‑We can't classify who's violent and non-violent.  What is your - sorry, your Honour, what is your classification of violent and non-violent?


I am asking you whether you would agree or disagree with what Senior Sergeant Billing would have to say about that?  You can agree with it or you can disagree?‑‑‑You keep repeating.  I can't give you answer in agree or disagree.  I just said I completely - - -


MR STEPHENS:  Your Honour, I object.  Senior Sergeant Billing hasn't given his evidence yet.  It's a hypothetical question before First Constable Azmi.


THE DEPUTY PRESIDENT:  Why don't you just put the particular statement of Senior Sergeant Billing?


MR POLLOCK:  I'm sorry, Deputy President?


THE DEPUTY PRESIDENT:  Just put the particular statement.

***        SHAFIQUR AZMI                                                                                                                     XXN MR POLLOCK


MR POLLOCK:  I'm putting a proposition to give him the opportunity to comment on it.




MR POLLOCK:  I'm asking him whether he would agree or disagree with it and I'm getting a non-responsive answer.


THE DEPUTY PRESIDENT:  Yes.  It might be more effective if he actually just reads the words for himself, if that's of assistance, Mr Pollock.


MR POLLOCK:  Deputy President, in circumstances where I will need to adduce that evidence orally, I'm giving him - this arises out of his reply statement, hence the need to deal with this, unfortunately, outside of a witness statement.


THE DEPUTY PRESIDENT:  Ask the question again and let's just see how we go.




Senior Sergeant Billing will give evidence in this proceeding and in response to your evidence that I read to you before, your reply statement, around there being only one brawler van and one van on the road, he says a number of things, or he will say a number of things, that there was a sedan that was being utilised to attend jobs in the Transit South area.  You would agree with that or you would disagree with that?‑‑‑I disagree with the wording 'sedan', it's SUV, as I said.


SUV?‑‑‑We don't have sedan at Frankston South Transit.


But you would agree that there was an additional vehicle beyond the divisional van that was able to be used to transport offenders?  You would agree with that?‑‑‑I have never in my last 18 months transferred and offender in the back of an SUV.


But you would have no reason to - - -?‑‑‑So that's my experience.  I don't know what - - -

***        SHAFIQUR AZMI                                                                                                                     XXN MR POLLOCK


Beyond your experience, you would have no reason to disagree with Senior Sergeant Billing's evidence on that?‑‑‑You have to ask Senior Sergeant Billing.


Thank you?‑‑‑Do you have the stats on that how many offenders have been transferred in the SUV and the divvy van?  As I said, 99 per cent of the time, we transferred offenders in a divisional van and in a brawler.  I answered your question when you asked me, I said 99 per cent of the time.  Is the 1 per cent chance that we are transferring offenders in those SUVs or the so-called sedan.


Senior Sergeant Billing will also give evidence that there was a second brawler van that was on loan from the city pending the delivery of another divisional van.  Do you agree or disagree with that?‑‑‑That came - I was the person who went and got that brawler in the last couple of months.  That brawler came in as a loan because our original brawler broke down and the parts were coming from Germany.


Nothing further, Deputy President.


THE DEPUTY PRESIDENT:  Thank you.  Mr Stephens?

RE-EXAMINATION BY MR STEPHENS                                        [10.41 AM]


First Constable Azmi, when did that second brawler van come to - - -?‑‑‑I can't be specific with the date, to be honest, your Honour, but I was the person who went to the city to get that brawler on loan from Transit Central because our original brawler broke down and the parts were not available in Australia, the parts were ordered from Germany, and that came, I think, in the last few weeks.  I still - I can't be very specific.


After 3 February?‑‑‑This happened only in the last couple of months.


You said that you have never experienced transporting an offender in an SUV?‑‑‑Not to my memory.  Maybe I would have done it, but, in my memory, I can't remember.  This happened maybe once, but I'm not very specific.  Maybe once.


When you talk about a van shift, is that referring to the brawler van or a divisional van?‑‑‑A van shift is a brawler van, yes.  We don't have a divisional van, we just have a brawler van to transport the offenders in that.

***        SHAFIQUR AZMI                                                                                                                  RXN MR STEPHENS


Nothing further, your Honour.


THE DEPUTY PRESIDENT:  All right, thank you.  You are now excused as a witness?‑‑‑Thank you, your Honour.


Thank you.  I don't think there would be any objection to the first constable staying in the room, Mr Pollock?





<THE WITNESS WITHDREW                                                          [10.42 AM]


THE DEPUTY PRESIDENT:  Well, Mr Stephens, I think that then is the conclusion of your evidentiary case; is that correct?


MR STEPHENS:  That's correct, your Honour.


THE DEPUTY PRESIDENT:  Given that we will do closings later, then, Mr Pollock?


MR POLLOCK:  Thank you, Deputy President.  Given the nature of the exchange that we had at the outset and the fact that we fleshed out, I think, one of the key issues in dispute, I wasn't proposing to labour you with an opening; I was intending to simply get into the evidence, and if there are any further issues that you would like to explore by way of opening, I'm more than happy to address you on those, but I thought, in the interests of time - - -


THE DEPUTY PRESIDENT:  No, I think it's probably more efficient to get on with the evidence and we can hear from everyone a little bit later about parts that have been said to be not relevant.


MR POLLOCK:  Of course.  Thank you.  I call Superintendent Humberstone.

<ANDREW GEORGE HUMBERSTONE, SWORN                        [10.54 AM]

EXAMINATION-IN-CHIEF BY MR POLLOCK                            [10.45 AM]

***        ANDREW GEORGE HUMBERSTONE                                                                                      XN MR POLLOCK


Superintendent Humberstone, just for the benefit of the transcript, can you repeat your full name and your business address?‑‑‑It's Andrew George Humberstone, currently at Level 14, 311 Spencer Street, Docklands.


You are a superintendent with the Victoria Police?‑‑‑Correct, yes.


Can you tell the Commission just in very broad simple terms what your role involves on a day to day level?‑‑‑So my current role with Transit Safety Division, I have  responsibility for three Local Area Commands, consisting of East, Central and South.  East is Eastern Metropolitan Region of local LGAs out towards Lilydale, Belgrave, et cetera, Central is CBD, the city areas, and South is the government region of the Southern Metro Region, so the whole of that area, and also management for the Transit Safety Division across the State of Victoria.


You have made a witness statement in this proceeding, haven't you?‑‑‑Yes, correct.


Can I ask you to open the folder that is in front of you and turn to page 122, which is behind tab 7.  Can I just ask you to confirm that the document that appears there, which runs to 79 paragraphs and has 12 annexures labelled AH1 through to AH12, that that is the witness statement that you have prepared in this proceeding?‑‑‑That is correct, yes.


I understand there are a small number of corrections that you'd like to make to the statement?‑‑‑Correct.


As I understand it, the first is in the heading, I think you've been inadvertently demoted a rung.  I understand we delete the word 'Acting'?‑‑‑Correct.


Insofar as there are any other references within the statement to your rank of acting superintendent, that should be a reference to the rank of superintendent; that's correct?‑‑‑Yes, correct.


The second change you seek to make is to paragraph 13.  You make a reference to you first dealing with First Constable Azmi when you made the decision to refuse his flexible working request of 5 October 2021.  I understand you wish to change that date to 21 April 2021?‑‑‑Correct, yes.

***        ANDREW GEORGE HUMBERSTONE                                                                                      XN MR POLLOCK


Can you just explain to the Deputy President very briefly what the nature of that initial interaction was?‑‑‑Yes, the first piece of correspondence was in February 2021 and my response to Mr Azmi was also 21 February 2021, as per what's contained in the documents from the applicant.


So I understand this and for the Deputy President's benefit, is the document that you are referring to - can I take you to page 69 of the court book, and this appears as an appendix to First Constable Azmi's statement?‑‑‑Yes, that is correct.


Is that the initial correspondence that you are referring to?‑‑‑Yes, it is.


In that circumstance, can I just ask you to look at the date of that correspondence?‑‑‑That is dated 21 April 2021.


Is that the first dealing that you had with First Constable Azmi?‑‑‑From my recollection, yes.


I understand also that you wish to make a change to paragraph 50 of your witness statement and that change is in the eighth line, where there is a reference to - the sentence reads currently, 'South LAC is funded to provide a PSO presence at 216 stations', the reference to South LAC should be to Transit Safety Division?‑‑‑Correct, yes.


Subject to those corrections and, Deputy President, my oversight of the 13th annexure, being AH13, which my instructor reliably informs me exists, you've had an opportunity to review that statement recently?‑‑‑Yes, I have.


Is that statement, subject to those corrections, true and correct?‑‑‑Yes, it is.


You wish to adopt that statement as your evidence in this proceeding?‑‑‑Yes.


I tender the statement and the annexures, Deputy President, subject to those corrections.


THE DEPUTY PRESIDENT:  All right, thank you.  Just before we mark them, you've now got me nervous about AH13.


MR POLLOCK:  Which is court book page 339.


THE DEPUTY PRESIDENT:  Okay.  So it's in there?

***        ANDREW GEORGE HUMBERSTONE                                                                                      XN MR POLLOCK


MR POLLOCK:  It is in there.  I missed the tab, Deputy President.


THE DEPUTY PRESIDENT:  No, no, that's okay.  It's in mine and I've marked it as AH13.  In which case, I shall mark as exhibit R1 the witness statement of Superintendent Andrew Humberstone, together with the annexures, comprised of pages 122 through to 340 of the court book.



MR POLLOCK:  Thank you.  Nothing further in chief, thank you.




MR STEPHENS:  Thank you, Deputy President.

CROSS-EXAMINATION BY MR STEPHENS                                 [10.51 AM]


Superintendent Humberstone, you set out your reasons for rejecting First Constable Azmi's flexible working arrangement in the letter dated 3 February 2022; is that correct?‑‑‑Yes.


To be clear, those reasons are the six dot points that span across the first and second page of that statement?


THE DEPUTY PRESIDENT:  Can the witness be taken to - - -


MR STEPHENS:  Yes, sorry, Deputy President, I'll bring us there promptly.  My apologies.


At appendix 4, or, should I say, court book page 75, which is appendix 4 of First Constable Azmi's witness statement, do you see the letter?‑‑‑Yes.


Those dot points spanning across the bottom of page 75 and the top of page 76, those are your reasons for rejecting the flexible working arrangement?‑‑‑In the letter, yes.

***        ANDREW GEORGE HUMBERSTONE                                                                                  XXN MR STEPHENS


At paragraph 11 of your witness statement, which is page 123 of the court book, you refer to there being currently 32 full-time funded OR positions in South LAC?‑‑‑Yes, there is.


I understand that is a correction to the 34 referred to in the rejection letter?‑‑‑Correct.


You also state in the rejection letter that the frontline business's usual requirements at the time of the rejection was 14 FTE.  Does that number account for various members on various forms of leave?‑‑‑It does, yes.


The 32 FTE, does that account for members on various forms of leave?‑‑‑That's the total number for the establishment of the South LAC, 32.


That is including - not accounting for members on leave?‑‑‑Correct.


So the two numbers can't be properly compared, can they?‑‑‑How do you mean?


Well, to say that the difference between the funded FTE and the actual FTE being 18, that's not an accurate representation because one number accounts for all the members that are on maternity leave, WorkCover, annual or rec leave whereas the 32 is just a wholesale number?‑‑‑Well, 32 is the funded establishment for South LAC.


Do you know how many vacancies there were at the time at South LAC?‑‑‑I'd be guessing if I said one or two.


It was almost fully operational, fully funded then?‑‑‑It should be a full establishment of 32 employees, yes.


Save for two vacancies, South LAC was operating at its ordinary capacity?‑‑‑Well, depending on who was on leave, who was on WorkCover, maternity leave, long service leave, et cetera, that reduces the capacity for us to respond.

***        ANDREW GEORGE HUMBERSTONE                                                                                  XXN MR STEPHENS


Is annual leave, long service leave, WorkCover, maternity leave, are those things taken into consideration when allocating resources to different units?‑‑‑We rely on - as I've mentioned in my statement, 17 per cent at any given time, we need to make sure they're on leave because they have nine weeks' leave per year, divided by 52 is obviously 17 per cent.  So, putting that aside, that's just recreational leave.  Then you have long service leave, parental leave, maternity leave, military leave, which we don't factor into our establishment numbers, and it's a juggle from fortnight to fortnight based on what we can provide for service delivery.


But, apart from military leave, all those other things are taken into account?‑‑‑Correct, yes.


Can I take you to paragraph 32 of your witness statement, which is at page 127, or begins at 127.  Apologies, sorry, could I take you to paragraph 30 where you refer to the deficit of 32 shifts as set out in the table in your rejection letter.  Those shifts that you're talking about, are they van shifts?‑‑‑Yes.


This is required to provide support to PSOs, PSO operations?‑‑‑And the travelling public that use the train system and the tram system and the bus system within Southern Metropolitan Region.


Have you provided any evidence to corroborate this number of 32?‑‑‑As in actual number?


Where the number came from?‑‑‑That's the establishment number at the moment as it sits in HRA, which is the human resource command's database.


Was First Constable Azmi regularly rostered an office shift during the trial period, and the trial period I'm referring to, if I can take you back to appendix 4, page 75 of the court book, where you refer to, 'Following a three-month' - - -?‑‑‑What page, sorry, again?


Page 75 of the court book, where you refer to a three-month review that was undertaken, I believe it was undertaken by Senior Sergeant Matt Campbell, or was it Senior Sergeant Paisley, but, nonetheless, a three-month review that you refer to.  Was First Constable Azmi rostered on any office shifts during that period?‑‑‑I couldn't tell you.


First Constable Azmi has provided evidence in his supplementary witness statement beginning at page 98 of the court book which attaches the rosters for Transit South 4 Frankston and, in those rosters, I put to you that it shows that at least half of the fortnights that Azmi was rostered, he was rostered at least once on a van shift.

***        ANDREW GEORGE HUMBERSTONE                                                                                  XXN MR STEPHENS


MR POLLOCK:  Deputy President, before the witness attempts to decode a question in all of that, first the witness might be taken to that annexure.  As my learned friend well knows, a bundle of rosters were annexed to First Constable Azmi's reply statement without any explanation as to the import of that in the context of his evidence or the submissions to be advanced.  It's not fair to this witness to have that proposition simply put without being taken to those rosters and given the opportunity to examine all of those, and then the questions might be asked.


THE DEPUTY PRESIDENT:  Yes, well, were you going to take the superintendent to the rosters anyway?


MR STEPHENS:  Yes, Deputy President.


Superintendent, if I can take you to page 100 of the court book.  This is the beginning of the trial period; is this correct?‑‑‑So this is 24 October?


24 October.  Is this the beginning of the review period that you refer to in your rejection letter?‑‑‑If that's what it says in my letter, yes.


If I take you to page 101, this is the second fortnight of that roster, or the second fortnight of that review period, and First Constable Azmi is rostered on an office shift on that first Sunday; is that correct?‑‑‑That's what it says on the roster here, yes.


If I take you to page 102, on Wednesday 1 December, it says First Constable Azmi was rostered on an office shift; is that correct?‑‑‑Correct, yes.


If I take you to page 103, First Constable Azmi is rostered on with a code LD.  Does that refer to light duties?‑‑‑I believe so, yes.


Would light duties ordinarily be conducted in the office?‑‑‑Correct.


If I take you to page 104, again rostered with the code LD, being light duties performed in the office; is that correct?‑‑‑Yes.


The same with page 105, I put the same proposition to you, Superintendent?‑‑‑That's what appears in the roster, yes.

***        ANDREW GEORGE HUMBERSTONE                                                                                  XXN MR STEPHENS


Page 106, First Constable Azmi is rostered with a combination of light duties and two office shifts, as well as an exam, for completeness; is that correct?‑‑‑Yes, that's what appears.


Finally, First Constable Azmi is on recreational leave in that final - - -?‑‑‑Yes.


So it's fair to say that First Constable Azmi performed a significant amount of office work during that period?‑‑‑Correct.


Apart from the period when he was on light duties, presumably due to - I withdraw that, your Honour.  Apart from the time when he was on light duties, he was rostered an office shift on a regular basis?‑‑‑I couldn't comment on that.


At the time of your decision, was there someone working 10-hour shifts out of Transit South Frankston?‑‑‑I believe so, yes.


THE DEPUTY PRESIDENT:  Sorry, I didn't hear that answer?‑‑‑Yes, correct, there was.


MR STEPHENS:  That member's 10-hour shifts obviously fit into the roster in a way that was acceptable and not unreasonable?‑‑‑It's probably a matter for the sergeant or senior sergeant to comment on, but he was rostered 10-hour shifts, yes.


Can I take you to paragraph 38 of your witness statement?‑‑‑What page is that?


Which is page 128 of the court book.  In this paragraph, you refer to the Resource and Management document dated 2017 and state that the attachments AH6, AH7 and AH8 combined comprise that document; is that correct?‑‑‑Yes.


You rely on this as the basis for the 32 ORs that are allocated to Transit South?‑‑‑No.  That was at that time the number funded by the South LAC.


At which time, sorry?‑‑‑2017/2018.


Just so I'm clear, the attachments AH6, AH7 and AH8, which I'll take you to them now at page 148 of the court book, AH6 beginning at page 148, these attachments relate to the time period of 2017 to 2018?  Is that what you're saying?‑‑‑Yes, this was signed off on 7 May 2018.

***        ANDREW GEORGE HUMBERSTONE                                                                                  XXN MR STEPHENS


Is it fair to say that these documents are not relevant to the numbers at Transit South at the time of your decision on 3 February 2022?‑‑‑It determines how many - what the minimum service delivery was then, correct, not now.


Not now and not at the time that you made the decision?‑‑‑Correct, but in terms of establishing minimum service delivery numbers, that was what was agreed to at that time across the five Local Area Commands.


Yes, I understand that, at that time being at 2017/2018?‑‑‑Correct.


But are you seeking to rely on this as a reason for why you rejected First Constable Azmi's flexible working arrangement in 2022?‑‑‑No, because there were only 26 ORs there then.


Sorry?‑‑‑At this time, 26 was the establishment numbers, now it's 32.


So you're not relying on this?‑‑‑No.


Can I take you to paragraph 47 of your witness statement, which is page 131 of the court book.  You say that:


Exacerbating the staffing shortfall would detrimentally impact Transit's ability to adequately perform its function.  I describe those impacts below.


Is that right?‑‑‑Yes.


At paragraph 48, you then assert:


Victoria Police conducted a trial of the length of time individuals were kept in holding rooms at train stations.


Is that correct?‑‑‑Yes, correct.


Did this trial contribute to your decision to reject First Constable Azmi's flexible working arrangement?‑‑‑At the time, no.

***        ANDREW GEORGE HUMBERSTONE                                                                                  XXN MR STEPHENS


No?  Superintendent, can I now take you to paragraph 50 of your statement, which is page 131 of the court book.  In paragraphs 50 to 52, you speak about the closures of train stations and define this as being when train stations are not monitored by PSOs and you state:


We not only report PSO and OR staffing, but we also report instances where regional police are required to cover Transit's shortfall.  Attached to this statement and marked AH10 is a copy of the service report for 2021/2022.


Is that service report where you were reporting on PSO and OR staffing an instance where regional police are required to cover Transit staffing shortfalls?‑‑‑It paints a picture of how many stations where we don't have a presence at for PSOs and then a requirement for ORs to have that presence in terms of roving patrols, to have that visible presence where we don't have the PSOs and the static patrols.


I will ask the question in a slightly different way.  Does that report demonstrate OR staffing?‑‑‑No, it doesn't.


Does it demonstrate where regional police are required to cover Transit staff shortfalls?‑‑‑It shows where we have a gap in Transit presence.


If I can take you to AH10, Superintendent, which begins at page 160 of the court book.  Could you please point to the evidence on this page of the OR shortages or OR staffing levels?‑‑‑There is no evidence.


Is there any evidence in this attachment AH10 which is relevant to the staffing levels of ORs?‑‑‑Yes.


MR POLLOCK:  Deputy President, the witness has already addressed what this document reveals in terms of the proposition was put to him and the answer was, and I'm paraphrasing here, but it illustrated gaps where regional police are covering where Transit otherwise doesn't have a presence.  My learned friend can test that proposition, but putting the same question to him a number of times isn't going to assist.


THE DEPUTY PRESIDENT:  I think you've got your concession, 'Does the report demonstrate OR staffing?' and the answer was a pretty clear 'No'.


MR STEPHENS:  Thank you, Deputy President.

***        ANDREW GEORGE HUMBERSTONE                                                                                  XXN MR STEPHENS


Can I ask them how it demonstrates these gaps and how it demonstrates the roles that the ORs and regional police fill these gaps?  Is there any quantifiable - - -?‑‑‑Each day there's a report prepared which we provide to Metro which shows the number of stations we don't have a PSO presence at.  They then adjust their public-facing page to show at which locations there is no PSO presence and we also task our ORs to make sure they have a roving presence at those stations where there is no PSO presence, and if there's a call for assistance at those locations and we don't have ORs available, then we rely on the regional police to respond.


THE DEPUTY PRESIDENT:  Can I ask a question just about the documents.  I'm looking at court book 160, which I think everyone has got in front of them.  Under the first entry under East LAC, and I appreciate this isn't your area, but there's a comment there, 'Insufficient personnel due to other rostering commitments' (indistinct) 'such as Operation Tidewatch' and it goes on.  What's that a reference to as you read this document?‑‑‑So that's Camberwell Railway Station and it says, 'Night network closure' and it's because of our commitments to the Hotel Quarantine Program, so having a visible presence in those various floors and couldn't staff Camberwell Railway Station that night.


Staff by PSOs?‑‑‑PSOs, correct.


Yes, I understand, all right, thank you.  Sorry, Mr Stephens.


MR STEPHENS:  Thank you, Deputy President.


Superintendent Humberstone, if I take you to page 208 of the court book, is it not the case that all of the entries in the remainder of this attachment from page 208 onwards are not relevant to your decision on 3 February to reject First Constable Azmi's application by virtue of the fact that they all occurred after 3 February?‑‑‑If that's a day after 3 February, yes.


So you would agree that the remainder of this attachment is not relevant at all?‑‑‑It's relevant in regards to service delivery challenges we have on the network on a daily basis.


Relevant to the question before the Commission today?‑‑‑Yes.

***        ANDREW GEORGE HUMBERSTONE                                                                                  XXN MR STEPHENS


Superintendent Humberstone, you briefly mention operations such as Tidewatch, Shielding and Sentinel in your rejection letter on 3 February.  Do you know what the commitment from Transit South was to deploy members, ORs, to any of these operations?‑‑‑February 22 or?


3 February 2022?‑‑‑I think, by November of last - 2021, we had completed our commitments to all those operations.


So, at the time of the decision, there was no commitment to those operations?‑‑‑In February, correct.


Superintendent Humberstone, can I take you to paragraph 74 of your witness statement, which is at page 136 of the court book.  Here you assert:


The calculations in the applicant's submissions do not accurately reflect the impact on the other aspect of Transit's service delivery.


Which aspects are these?‑‑‑As I've described in the paragraph.


Did you include these in your rejection letter, the letter dated 3 February 2022?‑‑‑Specifically?  I don't understand the question.


You state that there are aspect of Transit's service delivery which the applicant's submissions don't adequately capture.  Did you include those aspects if your rejection letter dated 3 February 2022?


MR POLLOCK:  Again, Deputy President, the witness might be taken to the letter.


THE DEPUTY PRESIDENT:  I think, in fairness, that's probably correct.


MR POLLOCK:  Page 76 of the court book.


THE DEPUTY PRESIDENT:  Well, let Mr Stephens - - -


MR POLLOCK:  I'll say no more at that point, Deputy President.



***        ANDREW GEORGE HUMBERSTONE                                                                                  XXN MR STEPHENS


MR STEPHENS:  Thank you, Deputy President.


As Mr Pollock points out, if I can take you to page 76 of the court book and refer you back to the six dot points which set out your reasons for the rejection.  In those dot points, you don't refer to operations outside of manning a van - sorry - - -?‑‑‑This is on page 76?


Yes, I believe my learned friend is pointing me to additional deployments excluding COVID-19 response additional tasking, but you didn't feel the need to expand on those in the rejection letter, as you did with the commitment to van shifts?‑‑‑That's correct.


Superintendent, can I take you to paragraph 43 of your witness statement, which is at page 129.  Here you state:


Transit is only funded to provide support to the rail network.




In a business entity, I think it's reasonable to expect a department to do something it's not funded to do?‑‑‑Say that again?


MR POLLOCK:  I'm sorry, Deputy President, how is the witness's opinion on that relevant?


THE DEPUTY PRESIDENT:  I'm not sure that the witness understood the question.  Perhaps repackage the question.


MR STEPHENS:  At paragraph 43, you state:


Transit is only funded to provide support to the train network.


Then you list a number of other things that it does.  Are you saying it's not funded to do those things?‑‑‑No.

***        ANDREW GEORGE HUMBERSTONE                                                                                  XXN MR STEPHENS


So would it be reasonable to expect them to do things that they are not funded - that your division is not funded to do?‑‑‑That's the purpose of ORs and the police sergeants to provide that additional footprint on areas outside the rail network.


Are you saying that the ORs and sergeants are funded to do that, that's part of the - - -?‑‑‑It's a very complex method.  The funding model for the transport network is two PSOs per platform, seven days a week across 216 railway station platforms.  That's what the Victorian Government gave us back in 2012 and it hasn't changed to date.  In addition to that, we are expected to provide a response to the various other locations, trams, bus-ups, where there's problematic crime issues, other broader issues, so we have that visible presence utilising the ORs and police sergeants and other regional colleagues.


Where does that expectation come from?‑‑‑When we meet and talk about tasking coordination and provide that additional footprint for the various five locations, the five locations being the five areas that Transit has a presence at throughout the Metro area.


Just to be clear, that's outside of the funded model?‑‑‑Yes.


Thank you.  No further questions, Deputy President.


THE DEPUTY PRESIDENT:  Thank you.  Mr Pollock?


MR POLLOCK:  Just a few questions in re-examination, Deputy President.

RE-EXAMINATION BY MR POLLOCK                                         [11.22 AM]

***        ANDREW GEORGE HUMBERSTONE                                                                                   RXN MR POLLOCK


Superintendent Humberstone, you were asked some questions about the 32 full-time equivalent - you were asked some questions about the funded number of full-time other ranked officers within Transit South and you described that in various terms as, as I understood it, the funded model and the minimum number.  Can I just ask you this:  what relationship does that 32 full-time figure, the funded model, have to the minimum service delivery Transit South is required to deliver as part of its operations?‑‑‑If you look at the number, we have 32 ideally on staff throughout the fortnight, rostered, for instance, that's obviously 320 shifts you utilise, and they talk about minimum service delivery, which is 156 shifts.  So, we're still not meeting basic service delivery with the numbers we have, and that does include task operations where we have a massive presence of police say at Dandenong CBD over a week period.  We're not resourced for things like that, so, as I said in my statement, I lobby and advocate for additional resources on a regular basis, but, like every other superintendent, we all compete for the same resource.


Just so I understand that, when you say you are not able to meet that minimum amount with the numbers you have, by that do you mean that - is that the number of full-time equivalent employees that you actually have available at any given time - - -?‑‑‑Correct.


- - - or what are you referring to there?‑‑‑Well, if we allow just for the 17 per cent on leave at a given time, we can put out just our normal service delivery response on those shifts, but if that number then, because of upgrading and other reasons for absences, it impacts on our minimum service delivery numbers.


You are making a distinction between the minimum service delivery and, I understood, the van shifts.  How does the number of full-time employees that you actually had available at the time of First Constable Azmi's request and your response, the numbers you actually had available, how did that relate to the other things, not the van shifts but the other non-core functions that Transit's still required to perform?  What relationship did that have?‑‑‑How do you mean?


As in to what extent, if at all, did the numbers that you had available at the time you were dealing with First Constable Azmi's request, to what extent was Transit South able to deliver on those other responsibilities, those other non-core functions?‑‑‑It's the only LAC that doesn't have a dedicated tasking team.  There's - Central, South, East and West has dedicated tasking teams because they have additional resources or adequate resources for their Local Area Commands.  South is problematic because it's across four divisions as in (indistinct) four boundaries, so, again, we advocate to try and get more resources into that division, or divisions by four, so we can actually improve our service delivery over and above the BAU, which is business as usual, minimum service delivery, and like 28 per cent of all crime reported across the transport network is attributed to South LAC, so, again, there's a greater argument to have more resources and more ORs in that Southern Metro Region, but I'm competing with other resources for the same people.


You were also taken to annexures AH7 and 8, and this was the resourcing plan that was prepared in 2018 and my learned friend suggested to you that those were - initially suggested to you that those were in play at the time you made the decision and I think you said, no, these were documents that were prepared back in 2018?‑‑‑Correct.

***        ANDREW GEORGE HUMBERSTONE                                                                                   RXN MR POLLOCK


Can you just tell the Commission a little about - I think you also said in answer to that question that, at that time, the full-time funded number was 26 and that's increased to 32.  Can you just tell the Commission a little bit about how that process works in terms of that number changing?  Is there some kind of - just tell the Commission how that - - -?‑‑‑We have a strategic allocation model which determines based on crime trends, (indistinct) data, ratio of PSOs to ORs to sergeants, and crime issues within a particular location.  That then determines where the greater needs in terms of OR support, and I was able to actually demonstrate this probably 18 months ago, that South is well underdone in regards to OR support across the region, so, I was able to get an additional six ORs and two sergeants, which now increased the established numbers to, I think 34 sergeants, 32 ORs.  Again, you're competing with other superintendents for the same resource and you've got to mount a greater argument with regards to where that demonstrated need is.


You were also taken to First Constable Azmi's rosters for what was described as a review period in October and three months following to the period that you refer to in the response letter.  You were taken to a number of shifts on that roster that would indicate that First Constable Azmi was rostered to light duties.  Are you aware of the reason why he was on light duties at that time?‑‑‑No.


In your role, I take it you couldn't assist the Commission one way or the other as to what First Constable Azmi was doing on those shifts?‑‑‑No.


And you wouldn't be able to assist the Commission one way or the other as to whether the duties that he was performing on those shifts was productive or otherwise?‑‑‑No.


You were also asked some questions about another four by 10 arrangement that was in play at South 4 Frankston.  Are you aware of what the current status of that arrangement is?‑‑‑It's still subject to review.


You were also asked a question about paragraph 48 of your statement.  If I can just ask you to turn that up.  You might recall you were asked some questions about a trial that you refer to in the third sentence and following, 1 April to 2 May 2022, VicPol conducted a trial of the length of time individuals were kept in a holding room, and then you describe the delta between what should be expected and what actually occurred.  I think my learned friend put to you, unsurprisingly, that this trial, which occurred after the response letter was issued, didn't form part of your reasons.

***        ANDREW GEORGE HUMBERSTONE                                                                                   RXN MR POLLOCK


To what extent can you say anything about how these sorts of issues, that is the processing of individuals in a timely manner from holding rooms until an OR is available to pick them up and process them, to what extent were those issues in play at the time that you issued the refusal letter?‑‑‑This type of issue, the whole purpose of a holding room is to remove the person from the platform away from the public, particularly if they're aggressive or quite obnoxious, to a holding area where, for a 20-minute period, we can placate them, try and put them at ease and try and get a van in to take them to a police station for processing because it's invariably either alcohol affected, mentally unwell, drug affected or wanted on warrant.  An ideal time is 20 minutes in a holding room because it's not an area of custody the PSOs are trained in custody management.  The expectation is that if, after 20 minutes, the OR hasn't arrived, then the sergeant needs to put something in place to resolve that, and that happens on a regular basis.


Lastly, you were asked some questions about the provision of OR resources for Transit South to some of the COVID operations, Sentinel, Tidewatch and so forth.  It was suggested to you, and you agreed, that by February of 2022, those operations or the requirements on Transit had ceased?‑‑‑That's correct.


To what extent did Transit have a commitment to those operations in October 2021 at the time that First Constable Azmi made his request?‑‑‑It would have been a significant commitment.  We had still Tidewatch commitments, which, again, Transit had the biggest resource commitment to the Hotel Quarantine Program and that was across all five areas.  Task Force 250's still running (indistinct) checkpoints at the border, which was a five-day deployment with a rest either side.


MR POLLOCK:  Nothing further, Deputy President.


THE DEPUTY PRESIDENT:  All right, thank you, you are excused, Superintendent, thank you for your time today.

<THE WITNESS WITHDREW                                                          [11.34 AM]


THE DEPUTY PRESIDENT:  Who's up next, Mr Pollock?


MR POLLOCK:  We call Senior Sergeant Luke Billing.


THE DEPUTY PRESIDENT:  Just before we do, I wasn't sure whether people needed an amenities break or anything along those lines?


MR POLLOCK:  Fine for me, Deputy President.  I assume my learned friend is similarly content.


MR STEPHENS:  Yes, that's fine for me as well.

<LUKE BILLING, SWORN                                                                [11.35 AM]

***        ANDREW GEORGE HUMBERSTONE                                                                                   RXN MR POLLOCK

EXAMINATION-IN-CHIEF BY MR POLLOCK                            [11.35 AM]


Senior Sergeant Billing, just for the purposes of the transcript, could you please repeat your full name and your business address?‑‑‑My name is Luke Billing.  I live at - sorry, I reside at - sorry, I work at - we'll get that right - I work at the Frankston Police Station at 15 Fletcher Road in Frankston.  I'm currently the acting senior sergeant officer in charge at Transit.


What does that role involve on a day to day basis?‑‑‑In relation to Transit, the South LAC, there's six senior sergeants, there's two at South 4.  I'm the member in charge at Frankston; I'm also in charge of the operational members between Dandenong and Frankston and my day to day role involves planning around operations, coordinating resources and running the day to day matters at the office.


You have made a witness statement in this proceeding, haven't you?‑‑‑Yes, that's correct.


Can I ask you to open the folder in front of you to page 341, which appears behind tab 8?‑‑‑Yes.


Can I ask you to confirm that the document which appears there, which comprises 76 paragraphs and has four annexures labelled LB1 through to LB4 inclusive, that that's the witness statement that you've prepared in this proceeding?‑‑‑Yes, it is.


You have had an opportunity to read that statement recently?‑‑‑Yes, I have.


Is that statement true and correct?‑‑‑Yes, it is.


Do you wish to adopt that statement as your evidence in this proceeding?‑‑‑Yes.


I tender the statement and the annexures, Deputy President.


THE DEPUTY PRESIDENT:  Yes, thank you, I will mark as exhibit R2 the witness statement of Senior Sergeant Luke Billing and it's exhibits comprised at pages 341 through to 390 of the court book.


***        LUKE BILLING                                                                                                                           XN MR POLLOCK


MR POLLOCK:  Deputy President, perhaps as would have been apparent from some of the question of First Constable Azmi, I had just a short number of questions as additional questions to respond to the reply material.




MR POLLOCK:  Thank you.


Senior Sergeant Billing, can I ask you to turn to page 98 of the court book, which appears behind tab 5.  This is the supplementary witness statement of First Constable Azmi?‑‑‑Sorry, which page?


Page 98?‑‑‑Yes.


At paragraph 7 there, you will see First Constable Azmi says:


At Transit South 4 Frankston, we only have one brawler van that we can use to transport individuals who have been detained by PSOs back to the station.


You will also see, if I can take you to page 65 of the court book, at paragraph 35 - and this is in the first statement of First Constable Azmi - it says this:


When I made the application for a flexible working arrangement in October 2021 and when I received Superintendent Humberstone's letter in February 2022, we only had one van at Frankston, the van that's on the road patrolling every shift.


In those two paragraphs, First Constable Azmi has something to say about the number of vehicles available and what they do.  What, if anything, do you have to say in response to those assertions?‑‑‑On page 65/35, at that time, there was only one divisional van attached to Frankston.  We had two at Dandenong that we could utilise, but we also, at Frankston, had three vehicles, SUVs, that can be used by police members.  So, the standard procedure for transporting offenders, if they're non-violent or reasonably safe, is to handcuff them and place them in the rear seat of the police car with a police member beside them.  So, that was a vehicle that was being used and - - -


Can I just pause you there?‑‑‑Yes.

***        LUKE BILLING                                                                                                                           XN MR POLLOCK


First Constable Azmi gave some evidence that he couldn't be definitive about it, but he thought he might have once or twice - I'm paraphrasing here and the transcript will bear it out - but I understood the import of his evidence was that that might have occurred once in his experience.  To what extent can you say whether or not that's - you said it's a standard procedure.  Is it common or uncommon for offenders, if they are non-violent, to be transported in an SUV?‑‑‑It's very common.  We use SUVs all the time for people that might have flexibility issues, for better want of term, so if there's someone who has children, if possible, we put them in vehicles.


A lot of times, we utilise the sergeant's car, which is one of the cars that is available to the other members.  The CI, the Crime Investigation Unit, we always use sedans to transport offenders and, historically, through my career, if you're not working a divisional van shift, you're in a sedan and you utilise the back seat of the sedan, and you might call upon a divisional van to assist you in transporting a violent offender, but they're still your offender and you're driving that sedan in combo with, at which point you take over the processing.  So, they're literally just a transport vehicle.


MR POLLOCK:  What, if any, other vehicles, aside from these sedans or SUVs, might have been available?‑‑‑Depending on - we work out of the Frankston Police Station, which has, I believe, three or four divisional vans there and a brawler, so, on occasion, we've borrowed vehicles from them.


Can you just explain to the Deputy President the distinction between an SUV, a brawler and a divisional van?‑‑‑Yes, so the divisional van has the offender transport area in the back, which is the big plastic area the offender's detained in; the brawler van has a wider area where they can sit two on the bench seats in the back and it's a separate compartment to the actual vehicle where the police members sit, whereas a sedan's a standard sedan and we have a standard procedure of putting them in the back seat behind the passenger seat and the passenger will sit behind the driver.


In relation to that second amendment statement, we've had two brawler vans at Frankston for approximately about six weeks, and the reason we got the second brawler van is that we've had a divisional van on order out of the Transport Branch that we're waiting for.  So, once that divisional van turns up, which should be either this Friday or next Friday, that second brawler van goes back to Melbourne and we'll have a brawler and a divisional van for that purpose.

***        LUKE BILLING                                                                                                                           XN MR POLLOCK


MR POLLOCK:  Just to be clear, as at February 2022, is it the case that there was - you're describing SUVs, you're describing a division van, you're describing brawlers - as at February 2022, is it the case that there was more than just the one van available for transporting offenders, that there were other vehicles?‑‑‑There's other vehicles there.  We only had the one brawler van attached to our unit, but we could utilise, if they weren't being utilised, divisional vans attached to Frankston, as we have at Dandenong previously on multiple occasions.


Just to be crystal clear, the role of other ranked officers, their primary or core function of supporting PSOs, is it correct that they might do that utilising a divisional van, they might also do that by utilising an SUV?  They will perform those duties using whatever vehicle is available; is that right?‑‑‑Yes.  In terms of the rostering perspective, we put the four members on the pm shift to cover what we call the two divisional vans, but it doesn't mean they have to be in a divisional van, they can utilise a sedan, they could be on foot patrol.  There's elements of their job that the PSOs can't do.  If a PSO has someone in custody, they can't issue them a caution or a charge or do a field interview for stuff that isn't under their powers.  So, what happens is we're relying on an OR member, in this case First Constable Azmi, to attend and deal with the police processing part.  That might purely be turning up and processing that person in the field before they be released.


Do I understand that correctly that, from what you're describing, there's core duties Victoria Police wouldn't reduce - there's not a reduction in need for that simply because there might only be one divisional van that's available?‑‑‑Certainly not, no.  We could put an extra three more on there and still be busy.  There's never ending offenders out there and it's just a matter of how we can process them as quick as possible.


Thank you.  Nothing further, Deputy President.


THE DEPUTY PRESIDENT:  Thank you.  Mr Stephens?


MR STEPHENS:  Thank you, Deputy President.

CROSS-EXAMINATION BY MR STEPHENS                                 [11.45 AM]


Acting Senior Sergeant Billing, I might ask you some questions just off the back of Mr Pollock's questions to you?‑‑‑Yes.

***        LUKE BILLING                                                                                                                       XXN MR STEPHENS


I believe First Constable Azmi's evidence earlier today was that he could not recall having transported someone in the back of an SUV and that perhaps would occur 1 per cent of the time.  Would you say that that's accurate?‑‑‑In terms of him transporting someone in the back of the van, I've got no idea.  I don't know when he has or hasn't transported somebody.  In terms of the police force as a whole, no, 1 per cent would be greatly underestimated.


At Transit South, what would you say that percentage would be?‑‑‑Transit South, I've transported multiple people myself in the back of a sedan as a sergeant because we've had no ORs and, when we've had no ORs, we've been forced to use the patrolling sergeant as a transport means, at which point you'll have - sometimes I've had to use a PSO to assist me in transporting because I can't do it by myself.


How many times is multiple?‑‑‑For me?


Yes?‑‑‑So, in the time I was at Dandenong, which was roughly 12 months, I would say I probably did it about 10 times.


That was as a sergeant?‑‑‑Yes.


Acting Senior Sergeant Billing, you give evidence about the vans, the brawler vans available at Frankston, the brawler vans attached to Frankston Uniform.  In your evidence, can I take you to a page of your witness statement at 341 of the court book?‑‑‑Tab 8, yes.


Tab 8, that's correct.  At paragraph 4, you say:


I have held my current role since February 2022.


?‑‑‑That is correct, yes.


At paragraph 13, which is on page 342, you say prior to 20 February, you were still coming into your role and you didn't really take over that position as acting senior sergeant?‑‑‑I don't think I've included the exact date there.  So, the last two weeks of February, I believe, I was the acting senior sergeant in that role.


Yes?‑‑‑I wasn't - I was just basically filling in for someone who wasn't there.  Senior Sergeant Chris Reid then did the next two weeks, at which point he moved into his new role, that position became vacant and I've held it since.


All right?‑‑‑Yes, so it's probably only two weeks since mid-Feb that I haven't been there.



***        LUKE BILLING                                                                                                                       XXN MR STEPHENS


But all your experience at Frankston is from mid-Feb to now?‑‑‑Yes, at Frankston.


At Frankston?‑‑‑However, when I was at Dandenong, I was the tasking sergeant across there, so I had involvement with tasking crew at Frankston.


So when you talk about the brawler vans and accessing the brawler vans from Frankston Uniform, you are only talking about the period when you were there as acting senior sergeant?‑‑‑From a Frankston perspective, yes.


From a Frankston perspective?‑‑‑Yes.


So you can't speak to the number of vans that were used by ORs from Frankston - from Transit South working out of Frankston prior to the middle of February?‑‑‑Well, the amount of divisional vans attached to the police station doesn't change, so, other than having one being service or offline, those vehicles have been there the whole time.  At Dandenong, which is very similar in make-up to Frankston, there's three divisional vans attached, there's the FTU that have two brawler vans and then there's the Transit that had two vehicles over there for transporting and then three sergeant's cars.


Right?‑‑‑So it's a very similar make-up.


But that's at Dandenong?‑‑‑That is correct, yes.


Not at Frankston?‑‑‑Yes.


If I take you to the bottom of page 342?‑‑‑Yes.


Paragraph 14, which is headed 'Responsibilities of the Transit Safety Division'?‑‑‑Yes.


Is it fair to say that these are observations of the division as a whole as opposed to Transit South Frankston in particular?‑‑‑In what regard, sorry?  In terms of having responsibility for the bus and tram network?


Yes?‑‑‑Yes, look, we don't have any trams at Frankston.  We obviously have an extensive bus network and we've got the train network that runs from the early hours of the morning.

***        LUKE BILLING                                                                                                                       XXN MR STEPHENS


You also provided evidence relating to First Constable Azmi's flexible working arrangement, more specific the conditions at the time of his application, and that's under the headings 'South 4 Unit', which is page 344 of the court book, 'Rostering', page 345 of the court book, 'Staff shortfall', again page 347 of the court book, 'FC Azmi's revised request for leave', page 48 of the court book?‑‑‑Yes.


And then your response to FC Azmi's evidence.  Is it right to say that this evidence is from the period when you were at Transit South Frankston?‑‑‑Yes.


Which is after the decision was made or after the flexible working - I repeat myself - after the rejection letter was sent by Superintendent Humberstone on 3 February?‑‑‑Yes, it roughly coincides with our return to business as usual, so we've come out of the COVID arrangements that we had with the government.


Did you contribute to the rejection letter?‑‑‑No.


Is it fair to say then that evidence that I have just referred to is not relevant to that rejection letter?


MR POLLOCK:  I'm sorry, Deputy President, can we just clarify which evidence he is referring to specifically?


THE DEPUTY PRESIDENT:  I think it was all of the headings from 'South 4 Unit'.


MR STEPHENS:  The headings from 'South 4 Unit', 'Rostering', 'Staff shortfall', 'FC Azmi's flexible leave request', 'FC Azmi's revised request' and 'Response to FC Azmi's evidence.'


THE DEPUTY PRESIDENT:  Perhaps the other objection which occurred to me is that asking this witness what's relevant or not is - I'm happy for you to ask if he was aware of it when it was considered, or perhaps deal with it like that, but whether something is relevant or not, I'll have both of you addressing me fulsomely once the witnesses are out.


MR POLLOCK:  I rose to my feet without reason, Deputy President.  That was the objection I was going to put.

***        LUKE BILLING                                                                                                                       XXN MR STEPHENS


MR STEPHENS:  No problem, Deputy President, I will leave my cross-examination at that, thank you.


THE DEPUTY PRESIDENT:  All right, thank you.  Mr Pollock, anything arising?


MR POLLOCK:  Yes, Deputy President, just a short brace of questions.

RE-EXAMINATION BY MR POLLOCK                                         [11.52 AM]


Senior Sergeant Billing, you were asked some questions about - this was in the context of the number of vans and vehicles available and you were asked to respond to First Constable Azmi's evidence that it might have been 1 per cent of the time that he'd used an SUV to transport an offender.  It was then suggested to you that your experience of those practices at Frankston was limited to, I think at the earliest, the second half of February when you moved there.  You gave some evidence in response that prior to that, you had been in a tasking role at Dandenong?‑‑‑That is correct.


And you had some - again I'm paraphrasing - visibility or connection with Frankston in that respect.  Can you just explain in a bit more detail, firstly, what is the degree of integration or coordination, if any, between the various service areas, so Frankston on the one hand and Dandenong on the other, in how South LAC coordinates its responses?‑‑‑Okay, so in relation to Frankston and Dandenong, when we were at the peak of our COVID operations, a lot of time the divisional van was actually staffed between Dandenong and Frankston members, so you'd have one member from Frankston and one member from Dandenong, and it was quite hard for us to operate because you'd have a member bringing a vehicle across from one police station to another one that's 25/30 minutes away to collect their offsider, and they'd have to finish their shift early to drop the other person off.  So, we had quite a lot of involvement with members out of Frankston.


Since then, in relation to our staffing issues, I've covered off in my statement about how many members we've got that are currently not in the workplace in that role and the shortfalls that we've had in members.  As a result, every responsibility that we have that isn't the pm van shift is a result of a combined effort at the moment.  So, when we have an operation or we have like a PAD dog, for example, come to a railway station, or some form of interaction with the authorised officers to try and patrol the network in daytime, I'm forced to coordinate with Dandenong to actually get staff.  Some days, we'll have two members available at Frankston, some days, we'll have one and, as a result, we team up with Dandenong almost weekly now to do an operation where we might have four members available or three members available and it's a pool of both offices.

***        LUKE BILLING                                                                                                                        RXN MR POLLOCK


MR POLLOCK:  So is it fair to then say the point you're describing there is that Frankston and Dandenong and the other service areas don't operate in a silo?‑‑‑Certainly not.  There's a lot of coordination at the sergeant level between the two offices and then myself.


The nature of that coordination, was that - did you have that level of coordination and visibility back when you were in that tasking role at Dandenong?‑‑‑Certainly, yes.  We'd be staffing operations during the day as part of our COVID response and we'd have to have members at what they'd call Tidewatch, that we'd go to the hotels and we had people at the border, and there might be a fact that, if we had to produce two members to go to the border, we might have both of them coming from Frankston one week because they were available, which meant that we'd have to then provide members from Dandenong to cover the van shifts across Frankston as a compensation in terms of actual service delivery coverage.


You might also recall it was suggested to you that much of what is set out in your witness statement from under the heading 'South 4 Unit' and 'Rostering' and all of that - that is paragraphs 24 through to 40 - it was suggested to you that all of that concerned your time at Frankston after the point in time that the request was responded to and refused?‑‑‑Yes.


To what extent, if at all, did you have visibility of and understanding of those issues given the nature of your tasking role at Dandenong?‑‑‑Yes, as part of the tasking role, I was looking at their roster every day.  I didn't write the roster, I just saw it was approved and we'd have to go across to their roster to actually staff some of the shifts at Dandenong and, likewise, it was quite reciprocated between the two offices and coordinated.  Going back to that paragraph 24, all of those things - all those people that aren't in the office were out of the office during this whole process, so that part specifically is completely relevant to any of the reasons in that letter.


Nothing further, Deputy President.


THE DEPUTY PRESIDENT:  All right, thank you.  Thank you, Acting Senior Sergeant, you are excused as a witness.

<THE WITNESS WITHDREW                                                          [11.58 AM]


MR STEPHENS:  Could I request a short break, Deputy President?

***        LUKE BILLING                                                                                                                        RXN MR POLLOCK


THE DEPUTY PRESIDENT:  Yes, certainly.  How long do we need?  Five minutes, 10 minutes?


MR STEPHENS:  Five minutes.


THE DEPUTY PRESIDENT:  We will adjourn for 10, actually.  That will give everyone time to come back in.  We're not as quick in resuming as we are on the online format.

SHORT ADJOURNMENT                                                                   [11.58 AM]

RESUMED                                                                                              [12.11 PM]


MR POLLOCK:  Thank you, Deputy President, I call Senior Sergeant Matt Campbell

<MATTHEW GLYNN CAMPBELL, SWORN                                 [12.12 PM]

EXAMINATION-IN-CHIEF BY MR POLLOCK                             [12.12 PM]


Senior Sergeant Campbell, just for the benefit of the transcript, can you please repeat your full name and your business address?‑‑‑Yes, my full name is Matthew Glynn Campbell, currently attached to the Fawkner Divisional Response Unit, which is from Sydney Road in Hadfield.


Prior to November of 2021, you held a role as a senior sergeant in the Transport Safety Division?‑‑‑That's correct.


Can you tell the Commission, very briefly, what that role involved on a day to day level?‑‑‑Yes, I worked in three different areas:  Transit South 1, which was predominantly working out of Oakley or Malvern.  There was a number of duties.  I wrote a couple down just to refresh my memory:  divisional supervisor duties; portfolios - I had the mental health portfolio; workplace inspection reports; people management - there was 100 people attached to Transit South 1; administration; declarable associations; leave; part-time applications; PDPs; LAC meetings.  There was a variety of different sorts of duties.  I did that for approximately 12 months before going to the tasking and coordination role at what was Transit South 5 initially and then it merged into Transit South 4, so had 16 ORs, or other ranked members, and some T&C duties within that time.


You have made a witness statement in this proceeding, haven't you?‑‑‑Yes, I have.


Can I ask you to turn in the folder that you have got in front of you to page 391, which you will find behind tab 9?‑‑‑Yes, I have that here.

***        MATTHEW GLYNN CAMPBELL                                                                                                XN MR POLLOCK


Can I just ask you to confirm that the document that appears there, which runs to 47 paragraphs and has 10 annexures labelled MC1 through to MC10 inclusive, that that's the witness statement that you have prepared in this proceeding?‑‑‑Yes, that's correct.


You have had an opportunity to review that statement recently?‑‑‑I have, yes.


I understand there is one correction you would like to make to that statement and that's to paragraph 37?‑‑‑Yes.


I understand that, in the first sentence, the reference to 'a minimum of 70 shifts per fortnight at that time' should read 'a minimum of 88 shifts per fortnight at that time'?‑‑‑That's correct, yes.


Subject to that correction, is the statement otherwise true and correct?‑‑‑Yes, it is.


Do you wish to adopt that statement as your evidence in the proceeding?‑‑‑Absolutely, yes.


I tender the statement with that correction and the annexures, Deputy President.


THE DEPUTY PRESIDENT:  Yes, I will mark as exhibit R3 the witness statement of Senior Sergeant Matt Campbell and the exhibits comprised from pages 391 through to 461 of the court book.



MR POLLOCK:  Thank you.  Nothing further in chief.


THE DEPUTY PRESIDENT:  Thank you.  Mr Stephens?


MR STEPHENS:  Thank you, Deputy President.

CROSS-EXAMINATION BY MR STEPHENS                                 [12.15 PM]

***        MATTHEW GLYNN CAMPBELL                                                                                           XXN MR STEPHENS


Just a couple of short questions, Senior Sergeant Campbell.  Throughout your witness statement, and I might take you particularly to paragraph 25, which is page 395 of the court book, you discuss or you give evidence about the ability for Transit South 4 to sustain First Constable Azmi's flexible working arrangement?‑‑‑Yes.


That was at the time of those discussions being around October; is that right?‑‑‑That's correct.


Are you aware whether there were any changes to these circumstances between October and 3 February 2022?‑‑‑I have no idea.  I left very shortly after that time, so I don't know what the business operating model is at Transit these days, no.  I assume, obviously, COVID has wound down to some degree, but I understand that they're maybe putting more time into divisional vans.


At paragraph 36, which is 397 of the court book, you refer to these operations, the COVID operations, being Shielding and Tidewatch and Sentinel, which have been broached previously today?‑‑‑Yes.


Can you speak to Transit South's commitment to these in February 2022?‑‑‑No.


I have no further questions, your Honour.




MR POLLOCK:  Nothing arising.


THE DEPUTY PRESIDENT:  Senior Sergeant, it was a short stay, but you are now excused as a witness.  I thank you?‑‑‑Thank you.

<THE WITNESS WITHDREW                                                           [12.17 PM]


MR POLLOCK:  That concludes the evidentiary case for the respondent, Deputy President.

***        MATTHEW GLYNN CAMPBELL                                                                                           XXN MR STEPHENS


Given the time, and my learned friend might have a different view of this and, by all means, he can get up to his feet and give an indication of how long he intends to be, but, in circumstances where the parties have filed reasonably comprehensive written submissions -I'm in your hands, Deputy President - we've got the better part of, you know, 45 minutes before we would ordinarily break for lunch, and if your view is that we make a start on closing submissions, then I am content on that, or, alternatively, if you would like to break early and we recommence early, then - - -


THE DEPUTY PRESIDENT:  Yes, I think they are the obvious two options.  In terms of the order of things, I was anticipating that Mr Stephens would be going first on closings, followed by yourself, Mr Pollock.


MR POLLOCK:  Yes, that's as I understood it.


THE DEPUTY PRESIDENT:  With a potential brief reply, if one is needed, at the end.  So, I guess, Mr Stephens, you have got an invitation there, potentially, for an earlier break, if you wish one, and we would resume a little bit earlier.  What's your preference?


MR STEPHENS:  It would be my preference to have an early break, Deputy President, but I'm in your hands as to how you proceed.


THE DEPUTY PRESIDENT:  Well then, it's the better part of 20 past 12 now.  If we resumed at, say, 1.30, would that be workable for everyone?




MR POLLOCK:  That would be convenient.


THE DEPUTY PRESIDENT:  All right, thank you, in which case, we will do that.

LUNCHEON ADJOURNMENT                                                          [12.19 PM]

RESUMED                                                                                                [1.28 PM]


THE DEPUTY PRESIDENT:  Yes, be seated.


Might we start with the housekeeping.  I put the email, and chambers received the email and I think that just sort of sets out some of the matters that were missing, or somehow had dropped off parts of the court book.  I'm not quite sure how that happened, but I think what I anticipate, or who I thank our instructing solicitors for working through that one over lunch.


I guess the only thing is on that, is that from the explanations that have jointly provided those corrections ought to be made, I think we'll just have to check against our material and if they're there, we'll do it; but if not, we might just have to ask the parties just to send in the replacement pages as it were.


MR POLLOCK:  Of course, Deputy President, and as I've indicated, nothing of substance turns on any of that.


THE DEPUTY PRESIDENT:  No, it's, it will be good to get to the bottom of why they dropped and see if I can find an answer.


MR POLLOCK:  There might be, in another case, a similar issue might be material, of course.


THE DEPUTY PRESIDENT:  Correct.  All right then, well, we're up to closings.  Mr Stephens.


MR STEPHENS:  Thank you, Deputy President.  So, as I outlined at the beginning of my submissions today, that this dispute is regarding an application for a flexible working arrangement.  It's not something that would be considered an overly complicated question, but an important one, nonetheless particularly for First Constable Azmi.  There's no dispute that First Constable Azmi is entitled to apply, there's been no dispute before the Commission that circumstances don't allow him to apply.


So, the only part of this issue that the Commission needs to consider is, as the question puts forward, were the business grounds put forward by Superintendent Humberstone, reasonable?  Now, it is in cross-examination with Superintendent Humberstone gave evidence to say that those business grounds were the six dot points set out in his letter on 3 February, and that was the time which the decision was made to reject First Constable Azmi's flexible working arrangement.


The authorities tell us that these are the reasons that must be considered and only these reasons, and they must be considered in the context of the time of the rejection.  Although the rejection letter sets out multiple numbers, statistics and makes reference to various different things, ultimately what this boils down to is the fact that First Constable Azmi is unable to work, possibly, two van shifts across a fortnight.  The impact of this, the tangible impact of this hasn't been fleshed out in evidence today.  Or we say it hasn't been fleshed out further in evidence today.


THE DEPUTY PRESIDENT:  By that, you just say they haven't come up for proof?


MR STEPHENS:  Exactly, that's right.  The evidence put by the respondent is that, you know this would essentially amount to Victoria Police being always busy all the time and not able to facilitate any kind of flexible working arrangement.  It would seem that – those are my words, but I think there was evidence to the effect of there are never enough – there would never be enough staff, LRs, resources.  But by that logic, no one would ever be entitled to a flexible working arrangement, particularly one on 10 hour shifts, which I would say is inconsistent with the clause of the agreement.


It's also inconsistent with the fact that there is a member at Transit South Frankston who is working 10 hour shifts, which Superintendent Humberstone said in his evidence, that situation was still under review, which presumably means that it's still occurring, or was occurring at the time of the decision, anyway.


On the numbers, there have been some numbers put forward which haven't been disputed around the availability for these van shifts which are cast as the reason for rejecting First Constable Azmi's application, the inability to fill the minimum requirements for van shifts.  There are 140 van shifts out of Transit South, taking into consideration the fact that an average LR would work 10 shifts.  The evidence from Superintendent Humberstone was that there was an average of 14 LRs on the roster.  I suppose you may need to take into account the two shifts, the two field shifts for the one member currently working the 10 hour shift roster.


THE DEPUTY PRESIDENT:  Can I get you to step me through where the numbers are coming from as well?


MR STEPHENS:  Certainly, so in the rejection letter - - -




MR STEPHENS:  Which is appendix 4.


THE DEPUTY PRESIDENT:  Yes, court book 76.


MR STEPHENS:  Court book 76, thank you, Deputy President.  Superintendent Humberstone says there are an average of 14 FTE; an average of 14 LRs across the division that are available for work every week, every fortnight.


THE DEPUTY PRESIDENT:  Yes, so he said – well, the letter says the whole of South, the FTE is showing us a total of 34 and we know that should be 32.




THE DEPUTY PRESIDENT:  Now, 'due to operational business restraints, front line business as usual requirements average just under 14 FTE'.  Yes, okay, so that's the 14.


MR STEPHENS:  That's the 14 number.  Now, and if each of these LRs, FTEs working 10 shifts a fortnight.


THE DEPUTY PRESIDENT:  That's where you come to 140?


MR STEPHENS:  Yes, and I should say that number would most likely, in actual fact, be 138, accounting for the fact that one member is current or was at the time, working a 10 hour roster, meaning that he would work eight shifts a fortnight.


THE DEPUTY PRESIDENT:  Yes, but the next page, so 76, the letter talks about the minimum operating model and it – so what is that?  Well, that's talking about van shifts of 156 per fortnight on the minimum operating model and then describes in the next couple of columns the current model, which totals at 120 per fortnight, which he says is a loss of 36 shifts.  I've interpreted that to mean a loss of 36 shifts against what, well, what minimum operating model means which is what I've understood, and perhaps incorrectly, their minimum service obligation, if I can call it that.  Maybe Mr Pollock will address me on that at some point in time.


Do you have a different understanding for what those mean?


MR STEPHENS:  So, I don't.  I certainly don't have anything further to add to that, other than the assumption that there has been some minimum determined and that being 156 shifts per fortnight.  I would note that although the current operating model, I say that there are 120 van shifts per fortnight being put it out.  It does suggest that there are other LRs that aren't being utilised on a van shift, if there are 140 shifts available in an average fortnight.


THE DEPUTY PRESIDENT:  Is that because – that's from your number of 140?


MR STEPHENS:  That's from the number of 140, which comes from the number of 14 - - -




MR STEPHENS:  Times 10.


THE DEPUTY PRESIDENT:  Because they're FTE as well; yes, I see.  Yes, all right.  No, I understand, I'm just wondering – I'm hoping I'm not going to be tripping myself up by looking at the numbers and the calculations.  Because there's some slight differences as well from time to time, I guess from the evidence which describes, I suppose, in different ways or different aspects of the shortfalls.  I'm perhaps trying and it might be that I'll never get there to sort of find apples versus apples comparison in all of this, but it might mean that I can't do that.


MR STEPHENS:  I agree, that is a difficult proposition, Deputy President, but I'll try my best to guide you towards that comparison.


But as you rightly point out in that table, the crux of this rejection is in terms of van shifts.  Now, we heard some evidence about what LRs may do, the other work that they may do.  They might do foot patrols, they might jump in an SUV, but fundamentally, the van shifts are, as the evidence was put, the division van, yes, they may do other work, but what we're talking about here is the ability to put two LRs in one of these vans and can back up the PSOs in the division.


First Constable Azmi's evidence was that there was one van available to them at the time and certainly, there was some question around whether there was a second van that was brought in, whether that van was brought in to replace the first van, or whether it was an additional van.  But nonetheless, that was all for a period after the decision was made, and I say, not relevant to the consideration of these reasonable business grounds.


Therefore, if I can continue on with the numbers slightly.  Operating one van across a morning and afternoon, every day of the week, the morning every day of the fortnight, is going to be 14 days in the fortnight.  The afternoon is going to be 14 days in the fortnight, and the weekend will be four days in the fortnight.  That brings us to a total of a possible 64 van shifts and I'm happy to go through the math, although I've put it in the submissions in reply.


THE DEPUTY PRESIDENT:  Is this for the whole of South, or just for the - - -


MR STEPHENS:  Transit South, Frankston.




MR STEPHENS:  South 4 only, yes.


THE DEPUTY PRESIDENT:  Well, pausing there, what do you say I should be looking at in terms of the reasonable grounds?  Is it South 4 or all of south?


MR STEPHENS:  Well, I would say that South 4 is the starting point, although I would accept that Transit South as a whole, the context of Transit South as a whole is relevant.  However, I would say that in terms of actually sitting in a van and filling this responsibility, First Constable Azmi only does so from Frankston.  So, his contribution, or the contribution to the staffing of the van shifts, is only going to be about 64.  That's the most that Frankston can contribute to, or at least at the time, could contribute to the 156 or the 120 – the operating model.


THE DEPUTY PRESIDENT:  Yes, well again, for apples and apples then, do I need to be looking at the equivalent numbers, if they exist for the numbers for South 4.


MR STEPHENS:  I think that may have been useful if it was in the rejection letter.  If we could determine that in the rejection letter.  I think the difficulty is, it's not possible to necessarily cut those numbers in half and say half is from Dandenong and half is from Frankston.  The evidence that's been put before the Commission is that there was one van that operated out of Frankston that was attached to Transit.


THE DEPUTY PRESIDENT:  I might have misunderstood this when I heard the evidence, but I thought at some point in there, a reference to a van shift is not necessarily just driving in a van, it might have included the officers on a train.  So, and again, I just want to make sure I'm getting the nomenclature right, when I'm looking at the word van shifts and the evidence, am I being asked to assume that that means literally they are in a van and it must be either a divisional van or a brawler, or is it something else?


MR STEPHENS:  No, that's correct, Deputy President.  The van shift is, it is a shift in a van, providing that support to the PSOs.  On that, Superintendent Humberstone did, or I did ask Superintendent Humberstone about the additional roles and the additional responsibilities of the Transit South LRs and as my learned friend pointed out to me at the time, that was also set out separately in the letter as in the paragraph underneath the minimum and current operating models, as being additional tasking operations and additional deployments, excluding COVID-19 responses.  So, I took that to be the other tasking, where it may be patrolling a train, or you know, jumping in the SUV and presenting a visible presence at a high risk train station, as opposed to - those sort or roles as opposed to the primary function, which has been said to be, backing up the PSOs with that van capacity to apprehend and transfer and individual.


THE DEPUTY PRESIDENT:  The superintendent at paragraph 8, and this is on court book 123, is a description of the primary function of the front line officers of other rank and that includes patrolling train stations on foot alongside PSOs.  You might need a vehicle, presumably to get to the train stations, I don't know.  But those other matters there, but I mean, the vans, and I might extend that to the vehicles, I'm assuming are necessary to get around to some of these places, but they're clearly not going to be travelling on the trains in a van.


MR STEPHENS:  Absolutely.  I agree, to the extent that they must get from point A to point B to be able to perform those sorts of roles, there would be a vehicle involved and imaginably they could utilise a van or a SUV or whatever other vehicles that there may be.  But it still stands that the van shift is what is – is that two LRs in brawler van or a divisional van providing that ability to transport or to back up PSOs at the stations and on the trains.  But an important part of that fact is the ability to actually transport individuals in the back of that van, and that's why they're referred to as such.


THE DEPUTY PRESIDENT:  Yes, I certainly accept the fact that the point that's made about the vans being necessary for processing of offenders, or for a number of offenders.  Yes, I understand the point.  I'm not so sure – and again, this is just me attempting to educate myself on what everyone is saying the – some of the labour was use there.  Sorry to interrupt; please continue.


MR STEPHENS:  No, that's quite all right.  So, if I might just finish the point on those numbers, that being that we accepted it's 64 shifts for one van across a fortnight.


THE DEPUTY PRESIDENT:  This is in South 4 only?


MR STEPHENS:  In South 4, or any van, to operate a van each shift across a fortnight, there are 64 possible shifts.


THE DEPUTY PRESIDENT:  Hang on, run that math by me again.  Is that for South 4 and is that on the premise that there is one van, is there?


MR STEPHENS:  Yes, on the premise that there's one van, that one can operate in the morning and in the afternoon.  So, the AM shift, which is the shift around 8 o'clock or so.  It could also operate that shift, if it operated from 8 o'clock, that van, would go through to 4.00 pm and then the afternoon shift would take that van.


THE DEPUTY PRESIDENT:  Well, if there's only one van, it can only do one day shift; it can only do one afternoon shift.


MR STEPHENS:  One afternoon shift and one night shift.


THE DEPUTY PRESIDENT:  And then there's a night shift.


MR STEPHENS:  When they occur.


THE DEPUTY PRESIDENT:  So, that's 14 a week, 28.  Sorry, where did we get to 60?


MR STEPHENS:  So, 14 days, 14 van shifts in a fortnight every morning; 14 in the afternoon is 28, and then eight across the weekend.


THE DEPUTY PRESIDENT:  Yes, that's 36.


MR STEPHENS:  Takes us to 36.  Sorry, four across the weekends.


THE DEPUTY PRESIDENT:  Okay, so four across the weekends.


MR STEPHENS:  So, one Friday night and one Saturday night, that takes it to 32.




MR STEPHENS:  It takes two LRs to operate the van; that gives us 64 shifts.




MR STEPHENS:  So, on the premise that there is one van is available, Transit South 4's contribution to the minimum operating model is 64 van shifts.  They may do other things; they may be tasked to do foot patrols on the trains.  They may be tasked to take an SUV to a station that's a particular high risk to provide a visible policing presence.  But the van shifts is a contribution of 64.


THE DEPUTY PRESIDENT:  And you say it's a contribution of 64 to, well, in the letter on court book 76, and you're accepting either of those two numbers as being correct?  The 156 per fortnight as the minimum operation model for van shifts or 120 per fortnight?


MR STEPHENS:  I accept that those numbers are correct.  I accept that they're correct for the entire of Transit South 4.  The reality is, is that the ability for – sorry, if I take a back step.  I accept those numbers are correct for the entirety of Transit South.  In terms of the ability or of the contribution of Transit South for Frankston to those numbers, that contribution can't be more than 64 shifts.


THE DEPUTY PRESIDENT:  I understand that.


MR STEPHENS:  Based on the availability of the van.


THE DEPUTY PRESIDENT:  Yes.  All right, I mean, how critical is it whether it's 64 or 62 or something above or below, because I'm just conscious we did have a few witnesses in the witness box where we perhaps might have explored some of these issues, but is the point that you make in all of this, that regardless of how the numbers are sliced and diced, if I could put it that way, you're talking a reduction of two shifts per week, and you say that on any of the metrics that you've talking about, two is not a relatively big number in the scheme of things?


MR STEPHENS:  Yes, we could say that; two is not a relatively big number in the scheme of things, and given the availability of resources, or actual ORs on the rosters that are provided in the supplementary witness statements, there are more than enough ORs available on those rosters to meet above and beyond that 64 shifts across a fortnight.


THE DEPUTY PRESIDENT:  And that's on the premise that there be one van?


MR STEPHENS:  On the premise of there being one van.  A reduction of two shifts per fortnight is not significant in any way.


THE DEPUTY PRESIDENT:  I forget which – either the Acting Senior Sargent or Senior Sargent though, they did explain though, that there were other vehicles there.  Now, assuming at the very least that bit's correct, what if anything, do you say is the significance of those vehicles?


MR STEPHENS:  I would say the significance of those vehicles, whilst they may be there, they do not allow the ORs to properly carry out these van shifts, and it's not right to say and it's not apparent on the evidence that you could just run every van shift with a sedan, as opposed to a brawler van.  The purpose of the van is to perform these shifts.  It might be in the case of, on occasion, that it's necessary to transport someone in a sedan.  Acting Senior Sargent Billing stated that he had done so, I think it was on 10 occasions as a Sargent.  Would not that as a Sargent he would only ever be in a sedan as opposed to brawler van.  But that is not fundamental to what we're talking about and what the basis of the rejection letter was.


The basis of the rejection letter was these van shifts, and we say that those van shifts should be seen as van shifts in a van, albeit that there may be on the evidence of the witnesses, the occasional circumstance, the occasional time when an offender is transported in a sedan, or another vehicle.


THE DEPUTY PRESIDENT:  Can I just have a look at the rosters, if I'm able to?  This is in reply to, and I'm not too troubled by it, which one you start with, so it may as well be court book 100.  Pick a day – I'm not sure what some of these numbers mean, but if Friday the 29th because that seems to have a fair few different descriptors in there.  Whoever the top officer is, they're a pro-700 office.


The next one is at 11:00 shield.  Is that possibly a reference to one of the COVID - - -


MR STEPHENS:  Operation Shielding.  May I suggest we look at page 101.




MR STEPHENS:  That's after Operation Shielding ended, or the commitment to operation shield ended.


THE DEPUTY PRESIDENT:  Yes.  So, but on a given day there's references to 794 van shifts in red.  It's hard to – I suppose I probably should have been exploring these through a witness.  No, look, I think I've distracted myself way beyond utility.


I'm just looking at the 18 November, which is a Thursday and there's two descriptors given for 16:00 794 van.  Now, and then there's other descriptors for 16:00 793.  Well, on the Friday to Saturday, shouldn't there be something on the, sort of the math that you were talking about before?  For each of these, I would be expecting to see two officers on a day, two officers on an afternoon, and two officers on a night.  Not getting even close to that.


MR STEPHENS:  Yes, and I would agree with that.  If they were rostering the van to its full potential, you would see each of those, as you say, two officers on a morning and afternoon and a night.  The decision not to do so, is clearly not a staffing or an availability decision, because there are boxes there, there are members there that can be rostered onto those shifts.  So, it's presumably an operational decision not to, not to roster the van every single morning, afternoon and the nights that they operate.


That doesn't – again, that's an operational decision and perhaps says something to the actual importance of these van shifts.  But ultimately, the capacity to do so is there, up to a maximum of 64 shifts a fortnight.


THE DEPUTY PRESIDENT:  I don't necessarily see from this where the capacity is there.  I mean, just looking at the final day, the Saturday the 20 November.  I mean, RD – I'm not quite sure what RD is.


MR STEPHENS:  A rest day.


THE DEPUTY PRESIDENT:  A rest day, is it?


MR STEPHENS:  Yes, it could be over a weekend.


THE DEPUTY PRESIDENT:  Well, looking on that day, if you're saying there's capacity for three van shifts to have operated that day, where would it come from?


MR STEPHENS:  So, I suppose I'm looking at this on average across this period, Deputy President.




MR STEPHENS:  There clearly isn't on that day, but if we looked at Tuesday 9 November, there's an excess of capacity on that date.  So, accounting for the fact that there may be some discrepancies from day to day, what we're talking about is the average ability for members to be rostered on these shifts.


THE DEPUTY PRESIDENT:  yes, I understand.  I'm not critical, I mean, in the sense that you're providing the numbers in a way that I can see the logic of what you're doing.  But at least some of these witnesses have given evidence of what they say the actual shortages are and I'm not – I mean, in the face of actual shortages, I think I'd be a bit – I'd need to be a little bit cautious in assuming that they could fill shifts when they are – well, when the rosters say they haven't, just looking at those, and I've got the witnesses saying they haven't; they've got shortfalls.  They wanted to do multiples on night time and they're producing the coverage for the two to one and so forth.  They're losing some of their afternoon shifts and so forth.


Now, I guess from that, I'm just trying to – I mean it still might be that I think your answer might stay the same, which is well, whatever the reduction might be it's still going to be a relatively small reduction.  Is that probably a fair proposition?


MR STEPHENS:  Yes, it is, Deputy President.  Not only would it be a relatively small reduction, but the fact there already exists a flexible working arrangement of 10 hour shifts at this time in that Transit South 4, it clearly demonstrates it can be done and further, it would suggest that as First Constable Azmi's flexible working application was the straw that broke the camels back, so to speak.  Because if it's been sustained, if that sort of shift pattern has been sustained, it's not the fact that the division can't sustain such a shift pattern.  But looking at the numbers and looking at the contribution to the operating model by Transit South 4, I would propose that it's not the decrease in two shifts, and in fact, in most weeks one shift, when you account for the office shift that is – that there may be spread out.  That's not a loss of a van shift if First Constable Azmi loses an office shift.


The loss of one or two shifts available to be put on that van, where there may well be other LRs that can be put in that position, is not the straw that broke the camel's back.


THE DEPUTY PRESIDENT:  I've got a question about the office shift which I'll come to in a second.  But before I get to that, and we leave the other officer who's doing the four by 10 hour shift that you've referred to, do you know what other adjustments, if any, have been made?  So, in First Constable Azmi's request that's four by 10, coupled with permanent Monday, Tuesday and Sunday's as rostered days off.  Do you know if there was something similar or something different or not at all for the other one?


MR STEPHENS:  I'm not aware of that for the other one, no.


THE DEPUTY PRESIDENT:  That's all right, thank you.


MR STEPHENS:  So, I suppose at this point, this essentially sums up the submissions, our closing submissions and that is to say that although the respondent's witnesses paint a picture that Transit South 4 and Transit South in general is severely understaffed and falling apart, so to speak and that if First Constable Azmi's application was supported that that would be the straw that broke the camel's back.  On the evidence of the number of vans that are available on the rosters that show for the number of LRs that are available, we say that that's simply not the case and that the reduction in the availability for those manned shifts or for any other shift that First Constable Azmi may be rostered on, for that matter, is not more than a slight insignificant or inevitable small impact, as was alluded to as acceptable in the decisions been rendered, the AB decision.


THE DEPUTY PRESIDENT:  Does that require me to reject some fairly important aspects of Superintendent's Humberstone's evidence, where he has given evidence on what he says the shortfalls are and the restrictions are?


MR STEPHENS:  I'm not sure – so, in terms of Superintendent Humberstone's evidence of the shortfalls, and let me know if you don't want me to deal with this at this point.


THE DEPUTY PRESIDENT:  No, no, go ahead.


MR STEPHENS:  But the evidence that he puts forward about those shortfalls is in terms of his attachment AH10 which is the PSO numbers at page 160 of the court book.


THE DEPUTY PRESIDENT:  These are the monthly reports?


MR STEPHENS:  Yes, these are the monthly reports about the impact or about the shortages of PSOs and to that we say that these are not relevant to the decision.  They don't point to the requirements for ORs or any sort of quantifiable obligation on ORs to attend a particular station.  It would be wrong to speculate beyond.


THE DEPUTY PRESIDENT:  But he doesn't rely on that – well, he does give evidence – I'm looking at court book 129 here about some of these statistics and I'm just trying make sure I get my head around it.  But then he describes South's minimum operating model which is the 156 shifts per fortnight and that appears to at least reflect what's in that letter that we were just looking at, at court book 76.  Then he says due to staffing shortages, this is at paragraph 42, there's been just under 124 shifts available per fortnight in the period October to January.  Then he says, as a consequence, Transit South LAC is not operating at this minimum operating model and has operated under a model where it provides for two afternoon van shifts and one night network van shift.


So, do you challenge those numbers?


MR STEPHENS:  I don't challenge those numbers.  I would only say that again, the contribution to those numbers by Transit South 4 and the relevance for that contribution is that's where Azmi operates from.




MR STEPHENS:  So, that's to a certain extent, his impact on these numbers, can only be limited to the contribution of Transit South 4 to that minimum operating model.  Notwithstanding the numbers before me, I don't dispute them.  I do say that the contribution from Transit South 4 is a maximum of 64 shifts and they have on their roster sufficient members to meet those requirements, if the operational decision is to do so.


THE DEPUTY PRESIDENT:  Yes, I see.  So, your point is that at South 4, there are no limitations?




THE DEPUTY PRESIDENT:  Yes.  All right, I understand that.  I understand that point.  Sorry, you were - - -


MR STEPHENS:  No, that's all right, I was at an end.


THE DEPUTY PRESIDENT:  All right then, in which case, Mr Pollock.


MR POLLOCK:  Thank you, Deputy President.  Deputy President, Victoria Police had reasonable business grounds to refuse First Constable Azmi's request.  At the time that request was refused, there were, and you've received written evidence and you've heard substantial oral evidence today that there were significant resourcing issues impacting Transit South in the general sense, and specifically at Transit South 4, that is Frankston, and I'll address you, as we move on as to the significance of the distinction and at what level you should casting that analysis.


There was a substantial delta between the resources actually required to discharge the minimum services delivery.  You've heard evidence of the 32 full time equivalent across South in order to meet the funded model, to meet those benchmarks on the one hand, and on the other, the resources actually available on the ground.  That was the 14 full time equivalent number, and as I'll take you through some of the evidence, that number drops further still.


That delta obviously has an impact on the ability to discharge what are described variously as the primary or core functions, what's been described as the van shifts and of course, I'll address you on what you ought to make of the evidence on that point.  But that's of course not to diminish the further exacerbating impact when one considers the other functions.  They might be described as non-core, but they are still requirements that are imposed on Transit South to discharge and they of course a knock-on impact on other rank availability in its three day prism, but this needs to be founded.


And of course, one thing that hasn't been examined very much, the oral evidence today that is dealt with in the written evidence in the submissions is the high crime rate, comparative within the South back are, compared to the other areas within metropolitan Melbourne.  So, at that time you have a material shortfall in available resources and a corresponding detrimental impact on service delivery.  So, it's through that prism and I guess, in that backdrop that the request falls to be assessed.


So, would have that request required?  Really, the nub of this, in circumstances where you might have seen, Deputy President, in the materials there were subsequent exchanges back and forth around some of the other parts of the request that might be able to be accommodated, and other alternatives, but really, the sticking point as between the parties was the request to move to a four by 10 roster.  So, two shifts to be back-filled per fortnight on an ongoing basis.


THE DEPUTY PRESIDENT:  What was the permanent weekend?  I thought that was - - -


MR POLLOCK:  That's a necessary – that was another part of his request and was a corollary of that request.  Now again, you'll see in some of the materials later, there's some alternative as to how some of that might be finished, but there was a non-starter in the context of the 14.  But of course, accommodating that request would divert resources away from other already stretched areas.


Now, of course, Victoria Police doesn't and couldn't say that by refusing First Constable Azmi's request that all these issues would be solved.  It's not a suggestion that this is – that deciding this issue one way or the other would fix all the problems or create all the problems – I put it in those terms.  But that's not the question.  What we are dealing with is whether, simple whether, Victoria Police's reasons taken together, provided objectively reasonable grounds.


As I understood in my learned friend's oral submissions a short time ago, the crux of his case really is, well look, two additional shifts a fortnight isn't much.  It's the inevitable small adverse impacts that Commissioner Wilson referred to in Emery, of course, as being, at least reference has been made to it in the AB case.  That might be so in a vacuum.  Considering that completely stripped of context, there's some superficial attraction to that submission.  Of course, the crux of our case is that one doesn't examine that in a vacuum; one doesn't examine it stripped of context.


Back fill the two shifts a fortnight in a different context, where Victoria Police could otherwise meet its minimum service delivery metrics.  Let's assume for the moment the evidence, in my submission, the overwhelming weight of the unchallenged evidence, and I'll deal with that momentarily, if that evidence were different and get to a place where it was otherwise meeting its metrics, then I could accept some force in what my learned friend has to say.


But Deputy President, you have to examine this, the reasonableness of those reasons against the backdrop of Transit South already being well behind the eight-ball; well behind meeting what its minimum service delivery requirements were.  Now, the reasonableness in that context required that Victoria Police not further exacerbate that situation.


THE DEPUTY PRESIDENT:  I think what Mr Stephens complained about that, is that that logic suggests that you'll never need to proceed to a flexible work request while those circumstances exist.


MR POLLOCK:  Well, there are a few responses to that submission.  The first is that which I think my learned friend expressly recognised.  If that were the case, then there would be no flexible work arrangements approved within Victoria Police accommodating four by 10 arrangements, and that's simply not the case.  There's evidence before you of at least one of those arrangements in play at Transit South 4.  Now, of course Superintendent's Humberstone's evidence was that particular arrangement is under review in the context of the factual circumstances that are now in play.  But the idea that this has been set up as an unusual position, the Victoria Police just does not accommodate these arrangements, is simply not right.


If the proposition is well, while those particular circumstances are in play, while you are behind the eight ball, you're sitting well below what the minimum service delivery requirements are, that that would be the case in all circumstances, well it might be the case in some circumstances, while the particular facts that are relevant to the consideration of that request at that time.  If that means that assessed objectively in those circumstances, those grounds aren't reasonably, well that's the answer.


It may not be the case in every situation across – in various different parts of Victoria Police, given the particular resourcing challenges that might be faced in South 4 versus a different metropolitan region, versus general duties elsewhere, versus somewhere in regional Victoria, versus a DRU elsewhere.  There might be a range of different circumstances that are in play and will require their own analyses.


So, the sort of in terrorem argument that you get that well, these things will never be approved, it fails on that analysis.  And I suppose a corollary to that point, Deputy President, if it be the case, and really grappling with the crux of what my learned friend puts that two shifts a fortnight doesn't form much of an adverse impact, the unstated submission that follows, is well, Victoria Police is a large sophisticated organisation; it can cop that; it can backfill that.  Well, if that be right then there's never going to be a circumstance in which its business grounds to refuse an arrangement in that circumstance are going to be reasonable, come hell or high water, whether it's ahead of its minimum service delivery or whether it's behind or whether it's grossly behind.


THE DEPUTY PRESIDENT:  I didn't understand Mr Stephens' submission was going to that level that you could under resources, potentially, externally approve them in.  I just understood it as it's either, it's a small impact or on another view, with the calculations here, just discussing about one ban at South 4, do the resources already exist.


MR POLLOCK:  Yes, as to that second – I think that the first – yes, that the first limb of that I think I've addressed already, but the second limb around well, the resources are there already, on the premise I think, my learned friend put it the premise of one ban.  I was going to deal with that as we move into the analysis of the evidence, but I can telegraph the response now.  That's simply not the evidence.  That wasn't the evidence of Senior Sargent Billing.  The unchallenged evidence was that there was – I'm paraphrasing, but it was a misnomer to describe these as – that these duties were discharged solely with reference to one van.  There are other vehicles available in order to perform those shifts.  So, the calculations here all hang off a fallacy.


It doesn't assist you one way or the other and you would be in error in making findings that there were resources available to discharge 64 shifts because there was one divisional van available.  If you were to make those findings, you would have to reject Senior Sargent Billing's unchallenged evidence on that score.  There is further – and I can get into it as we move through, there were vast sways of Superintendent Humberstone's evidence again, around the core duties and what that involves.  That these propositions are just fundamentally contrary to, and in circumstances where that evidence was not the subject of cross-examination.  With respect, it's not a proper basis to advance closing submissions on that evidentiary footing.


I propose to deal briefly with some of the legal questions.  I know we've dealt with a lot of that in opening.  I then propose to deal with – flesh out some of the relevant evidence and then grapple with a few of the key contentions that are put against us, Deputy President, if that's convenient.


THE DEPUTY PRESIDENT:  Do I need to be looking at cases yet?


MR POLLOCK:  Not at this stage, and I will make my reference to those cases, hopefully as brief as one can be. Deputy President, can I just ask you to turn up clause 14 of the 2019 agreement.  Now, perhaps I can just deal with this very briefly, Deputy President.  You've identified I think, in some of the observations in opening the key points of distinction from the NES clause and principally, that is because of, as opposed to relating to.


You'll see in the reasons of Commissioner Bissett in the AB decision, that some of the notions made around that this provision is broader, and I think your observation that it is more beneficial to employees is right.  Nothing really turns on, maybe in the context of this particular case, as we've highlighted, there's no contest that First Constable Azmi relevantly qualifies or meets the requirements of 14.2.  So, really there are only two brief observations I wanted to make about the operation of clause 14.


The first really is the relevance of the weighing exercise.  I addressed you on this in opening, but to be clear, the weighing exercise insofar as there is one, finds voice in clause 14.7, but the requirement – the basis on which an employee may refuse the request and the reasonableness assessment that is then imposed, is found in 14.9 and 14.10.  That is not a provision which calls up any direct weighing exercise.  In my circumstances, it is not – it does not require you to conduct some kind of mechanical balance of convenience, balance of fairness type assessment and whichever way the see saw is tilting gives you the answer to be able to say, that's not the test.  You are required to determine whether or not the business grounds are reasonable; that's an examination of those grounds.  Yes, in the factual context, of course.


But reasonable here, on ordinary meaning endowed with reasons, not absurd, there's a broad spectrum of room within those reasons as to whether or not something falls on the right or wrong side of the line.  That is, you could have a great deal of sympathy for First Constable Azmi's situation, as Victoria Police does, as we all do.  You could form the view that had you been sitting in Superintendent Humberstone's shoes, that you might have weighed those factors differently.  But neither or those matters would give you a basis of itself to find that those reasons were not reasonable business grounds.  That is, reasonable minds can differ on that question.


THE DEPUTY PRESIDENT:  That doesn't take away that the grounds actually – is what you're saying here, is that there's in any discretion there is for the employer to refuse, there's a spectrum of outcomes which would cover reasonable grounds.




THE DEPUTY PRESIDENT:  And as long as you're within that spectrum, then they're reasonable grounds, and indeed some of that spectrum might also include accepting the request.


MR POLLOCK:  Yes, of course.




MR POLLOCK:  The second point here, of course, is the question of the timing of the assessment.  Clause 14 obviously sets out in a similar way to section 65 sets out, a reasonably proscriptive process for the making of a request and the provision of reasons approving or rejecting that request.


Of course, we don't cavil with the proposition that the reasons that fall for assessment here are those which were provided.  You can't reverse engineer in the courtroom for the first time new and different reasons.  That was obviously the point that Commissioner Wilson advanced criticism of in the Emery case.


Of course, that doesn't mean that those reasons can't be fleshed out or developed in the context of the proceeding.  Really, the touchstone here - well, were it otherwise, then the employer would effectively be required to marshal their case that they would be advancing in the Commission at the time of writing that letter in response.


The question here, really, the touchstone, should be whether or not that point is materially new or different, on the one hand, or on the other, is it a development or an exposition of the reason in fact provided.


THE DEPUTY PRESIDENT:  On that, taking it, which I accept, that the reasons needed - or existed at the time of the decision - I mean, I think my view on this is that the letter of the rejection, because response will usually be with a written response - in fact, I think it's required, but it's not a pleading, and I don't think either the statute or the enterprise agreement expects that pleading level of particularisation.


So I accept, to a degree, that - augmented isn't the right word, but it might be explained further, the thinking, but if a witness has given evidence about reasons, then unless I choose not to accept that evidence, then it might be that the absence of clarity in the initial rejection might cast doubt on whether later evidence given about what comprised the reasons should be accepted or not, but it wouldn't seem to preclude that evidence being given.


MR POLLOCK:  I would certainly accept that that wouldn't preclude that evidence being given, and I didn't understand there to be - I mean, I think you asked me that question in the abstract, in general terms.


If I can perhaps bring it into the concrete of the evidence that was adduced today, and it's a point that I'll perhaps deal with in a little more granular detail as we move through, but in several material respects there was no challenge to the central reasoning for each of those reasons that Superintendent Humberstone put forward.


There was no challenge to the direct evidence of Senior Sergeant Billing, which supported the existence of the facts that formed the basis of Superintendent Humberstone's reasons, equally, no material challenge to the evidence of Senior Sergeant Campbell, who you'll recall was tasked with the initial examination of First Constable Azmi's request when it was made back in October of 2021.


But to answer your question, in the general sense there might be, if there were such a substantial mismatch or gap between the written reasons provided on the one hand and the way that the evidence were to have subsequently unfolded in a hypothetical case, then, of course, you can see a world in which that might give you pause for thought around whether or not you would accept that evidence.


I can simply say (1) that is absolutely not the case here.  The written evidence and the oral evidence was squarely in the realms of a development of, an explanation of, an exposition of the reasons provided, and secondly, none of that evidence was the subject of challenge.


THE DEPUTY PRESIDENT:  I thought, in fairness, though, there's a bit of a global challenge to - I think it's mostly to Acting Senior Sergeant Billing's ‑ ‑ ‑


MR POLLOCK:  Yes, on the basis that much of his evidence - well, he arrived at Frankston ‑ ‑ ‑


THE DEPUTY PRESIDENT:  Correct.  After the ‑ ‑ ‑


MR POLLOCK:  The second half of February, yes.




MR POLLOCK:  And you will recall that was the subject of some evidence in re‑examination, because, of course, Senior Sergeant Billing didn't fall out of the sky in the middle of February.  He had come from a tasking role at South Three in Dandenong.


He gave some evidence around the nature of the integration, the interaction, the coordination between those two roles, and quite pointedly gave evidence around the level of visibility that he had of these issues arising at South Four in Frankston before he had arrived, and I would encourage you to review the transcript when you retire to chambers to examine that.




MR POLLOCK:  That was no accident.  That's to provide the foundation as to why you can rely on his first‑hand evidence of those things.  They are not simply relevant to the period from the middle of February onwards.


Had my learned friend sought to directly impugn that there are two things he should have done.  The first is to have put squarely to him that, 'You don't know personally - you don't have direct knowledge of these things, as they occurred prior to the middle of February.'


Secondly, having taken any issue with any of that in re‑examination, the appropriate course would have been to seek leave to ask some further questions to test that, and  neither of those courses were taken.


I think I foreshadowed in opening that there might be some questions of weight as to some of First Constable Azmi's evidence, and that was, broadly speaking, on the basis of some evidence from March 2022 onwards.


I don't need to say anything beyond the broad observation that, well, you know, evidence post‑dating that you would not place a great deal of weight on, but in circumstances where we accept he qualifies and we say that you don't conduct a weighing exercise in determining the reasonableness, then that's neither here nor there.


If you were to form a different view and form the view that you do have to conduct that weighing exercise at the point of determining the reasonableness of the business grounds, then of course I'd make the submission that those parts of First Constable Azmi's evidence that concern events following early February 2022, of course, can't bear on that assessment.


THE DEPUTY PRESIDENT:  Yes.  It's a bit of an unusual one there.  I was thinking about it a little bit further.  At least conceptually, I suppose, it is actually relevant, arguably, to the reasonable business ground if, in a hypothetical example, the evidence was incontrovertible it was going to be a short‑term event - you know, if there was caring responsibilities that might exist for a weekend.




THE DEPUTY PRESIDENT:  As opposed to something that was going to be ‑ ‑ ‑


MR POLLOCK:  Partner flies overseas, there is absolutely no one else to look after the kids.




MR POLLOCK:  That sort of situation.  I think in my response to some of your observations then I think I did perhaps observe that, yes, there might be a situation where the mismatch is so start on the particular facts that that might be something that on an objective basis, examining that in context, that might be enough to tip it into the realms of unreasonableness.


That might be a situation in which that arises, but in my submission, you don't have to reach a concluded view on that question here.  We're not in that world.




MR POLLOCK:  Can I deal briefly with just some of the evidence on the reasons.  Of course, the starting point is the refusal letter.  We spent some time on that document.  There is really one broad, I suppose, reason, but with a series of dot point developments or illustrative examples of those.


Of course, we accept that we're confined to the way in which that document frames the issues, and certainly there hasn't been a - and we haven't sought to advance some new or materially different definition.  I'm sure my learned friend will correct me if I say otherwise.


That, of course, is itself an express development of the initial response that was given back in October of 2021.  For your reference, Deputy President, that initial response is found at court book 454, but the agreed course here and the agreed arbitration question here is the assessment of the reasonableness of these reasons in the February 2022 document.


THE DEPUTY PRESIDENT:  Yes, and just to be clear, on everyone's basis there, I'm proceeding with the date that everyone's talking about - is 3 February 2022, yes.


MR POLLOCK:  Yes, but I suppose the reason I raise that is to understand the context of how all this came about.  There was a request made in October.  There's an initial preliminary response, if I can put it in those terms, and then some correspondence between the parties and a clearer articulation of those reasons in February.


I addressed you right at the outset, Deputy President, around the delta between that 32 full‑time equivalent requirement to cover minimum service delivery and the actual available numbers.


You'll see that evidence developed at firstly paragraphs 24 and 35 in the statement of Superintendent Humberstone.  You'll also see that in the evidence of Senior Sergeant Billing in paragraph 34.


Can I just touch on some of that evidence in a bit more detail.  Can I take you first to Superintendent Humberstone's evidence, and can I take you - this is court book 128.


At paragraphs 38 and 39, the superintendent explains the source and the basis of these minimum service delivery requirements.  You were taken through some of these documents and the superintendent explained that the initial development back in 2017, 2018, had subsequently been overtaken by some revisions that he managed to push through, and those numbers have increased from a figure of, I think, 26 to 32 full‑time equivalent.


I pause at this juncture to note that as was the case with vast swatches of the superintendent's evidence, it's not a challenge to the underlying proposition here.  There was no attack to suggest that 32 full‑time equivalent is not required in order to meet minimum service delivery across Transit South.  There was no attack on the fact that those minimum service delivery requirements are reasonable business requirements of themselves.


You'll see, as it follows in his evidence, he describes a period from October 2021 to 2 January 2022, so squarely in the ball park of what would be reviewed or assessed when dealing with the request.  South LAC wasn't meeting that requirement and it was averaging 14 FTE other ranked officers.


And then 41, 42, and you see these are the numbers that ultimately find voice in the letter, that is, the minimum operating model requirement, the assignment of 156 shifts a fortnight versus 124 actual available.


Can I pause at this juncture to perhaps deal with this question of what is or is not a van shift and what is or is not a core duties.  With respect to my learned friend, there was a degree of evidence from the Bar table in his closing submissions in chief around what these core duties were and what is a van shift.


The unchallenged evidence of Senior Sergeant Billing was that these core duties, that is, PSO support, is not confined to the one divisional van that might have been available at a given point in time.  That is, there were other vehicles that can and were used, but also that they might perform those duties by conducting foot patrols or riding on trains, and you'll also see that evidence, those primary duties, defined words, in paragraph 8 of the Humberstone statement.  This is at court book 123.


THE DEPUTY PRESIDENT:  But as a matter of language, 'Patrolling train stations on foot alongside PSOs', being the first dot point of paragraph 8 there, is that what you would label as a van shift?


MR POLLOCK:  Well, this is where the nomenclature in that letter is pretty unhelpful.  What I can say, clearly - and perhaps unfortunately, some of this wasn't tested in cross‑examination and so we're not in a world of being able to really tease that out.


What we can safely say is that even if a van shift is one that involves driving around in a vehicle in order to support PSOs by being there to pick up an offender and take them back to the station, that that is not confined to a divisional van.


That would require you to reject Senior Sergeant Billing's evidence that that is commonly done through the use of other vehicles, and as against that, all you have is First Constable Azmi's evidence that in his experience he's only rarely done that.  I think he said one per cent of the time, or he might have done that once or twice.


Again, you can review the transcript, but Senior Sergeant Billing's evidence was that it's common, it's according to - and I'm paraphrasing here, but there was a reference to it being in accordance with procedure if they're non‑violent and it can be appropriately dealt with on that basis.


So even if a van shift requires a vehicle, the importance of that distinction, of course, is that all of the maths that was advanced around 64 shifts hangs off there being one vehicle available, and once that premise - and my friend put it as a premise.


Once that premise falls away, the maths falls away, and what we're left with, of course, is the unchallenged evidence of the superintendent and the unchallenged evidence of both of the senior sergeants around the inability for Transit South broadly and South Four in particular to meet those core duties on the basis of the resources they actually had available at the time.


Just on that point, can I also just draw your attention, Deputy President, but I don't need to read it out, to paragraph 72 of Superintendent Humberstone's statement, responsive, really, to one of the principal arguments in the Police Association's submissions.  I don't read it out, but I simply draw that to your attention.








MR POLLOCK:  And 77.  Yes, of course.  And just while we're dealing with the oral evidence of Senior Sergeant Billing, there was, again in my friend's closing submissions - he made some reference to van staffing being conducted from Frankston only and that that would be a reason why you would analyse those numbers purely on the basis of South Four.


The submissions sits awkwardly with the again unchallenged evidence of Senior Sergeant Billing that there is a substantial degree of coordination and integration as between the four service areas within Transit South, and it's at that point that I can draw your attention to, if we're talking about the numbers and the minimum numbers at these various levels or tiers, Senior Sergeant Campbell's evidence, paragraph 35 - I'm sorry, paragraph 37 - or 35 through to 37, really.


He describes his understanding of core duties and makes a distinction between those core duties on the one hand and certain additional duties that were arising at that time, 36.  At 37, 'Overall, Transit South Four' - not Transit South broadly but Transit South Four, that is, Frankston - 'core duties required a minimum of' - and as corrected in the box and not challenged in cross‑examination at all - 'required a minimum of 88 shifts per fortnight at that time.'


THE DEPUTY PRESIDENT:  I think Mr Stephens' maths was 64.  I think it was 64.


MR POLLOCK:  That's 64 on the basis of there being one van.






THE DEPUTY PRESIDENT:  And you say it's 88.  I suppose in one sense for Mr Stephens that's a bigger bucket from which he might say that the impact of the request is more dilute.


MR POLLOCK:  No, I think the import of Senior Sergeant Campbell's evidence is that that's what you would need in order to meet those minimum requirements.




MR POLLOCK:  And he then goes on to say, 'We didn't meet it.'




MR POLLOCK:  It's not to say that's what you've got available, that's the hurdle or the price of entry to get in part, to be clear, the minimum, and again, not the subject of any challenge in cross‑examination.


THE DEPUTY PRESIDENT:  Just to be clear, though - I understand the point you made there about paragraph 37, but is it the case that Victoria Police are saying that the decision that was made or the reasons were based on the whole of Transit South, not just South Four.


MR POLLOCK:  It's the whole of Transit South, and I think that follows from ‑ ‑ ‑




MR POLLOCK:  When you review the 3 February letter, that is couched in those terms.




MR POLLOCK:  There are references to TSD South.




MR POLLOCK:  And the numbers, when you examine the numbers in the table, for example, that's South, not a South Four number.


That stands to reason, Deputy President, again consistent with Senior Sergeant Billing's evidence, given the level of integration and coordination between the four service areas, and when one reviews carefully the senior sergeant's evidence and the superintendent's evidence also, that level of integration and coordination is necessary because there's a whole lot of shuffling of deck chairs required as between the four service areas to do their darnedest to meet these requirements with the resources they have available at any given time.


THE DEPUTY PRESIDENT:  The decision‑maker - if we use the language of 'decision‑maker' here - is Superintendent Humberstone, and he says at 76 if it's not clear from the letter, that it's decided at the LAC level, not the individual workplace level.


MR POLLOCK:  Yes.  I accept that there's a degree of variance in some of these numbers depending on who's looking at what and which particular point in time they're analysing it, but to the extent that you're making findings here, Deputy President, what emerges from the evidence of each of the three Victoria Police witnesses, and again not the subject of challenge, was no matter where those numbers might finally be, that shortfall, that delta between what's actually required and what's actually available is material and was so at the time that this decision was made.


I'll just give you a couple of references for the evidence here.  I won't take you through it.  You'll see Sergeant Billing's statement at paragraphs 24 to 26 and 29 to 30 also go to this shortfall issue.  You then have some development of the impact on the non‑core functions as well in Superintendent Humberstone's statement at paragraphs 43 through to 46, and I don't need to take you through that now.


Of course, the consequence, the impact of all of this, there is again substantial evidence from the superintendent on those matters, the impact on timely processing, the inability to process offenders with outstanding warrants, the failure to meet these minimum service delivery matters and the fact that those are metrics that are tracked at government level and at senior organisational level within Victoria Police.


You'll see all of this in paragraphs 48 through to 52 or thereabouts in the Humberstone statement.  I need not take you through it, but again, worth a careful review in chambers.


THE DEPUTY PRESIDENT:  Are they all, in essence, manifestations of what you say happens when you lose two shifts a fortnight?


MR POLLOCK:  It's not that we say that all of these things happen when you lose two shifts a fortnight.




MR POLLOCK:  That, with respect, is the wrong frame of analysis.  What we say is that those things are consequences of the shortfall between what's required to meet minimum service delivery and where we actually are in terms of what we have available.  That's the factual context.  That's the factual matrix against which this request is assessed.


So that's where we are.  There are these material impacts on service delivery, on community perception of safety.  There's evidence of surveys and the like.


We don't say that all that is caused by lost shifts.  Of course we couldn't say that, but if that's the world you're in, if you're that far behind where you need to be and those are the consequences that are in play, one needs to ask whether or not it is reasonable - assessing accommodating the loss of two shifts where everything might be rosy and you might be meeting those things might look very different to when you're behind the eight ball.


Perhaps I can put this in terms immediately familiar to us at the Bar table and you in your previous life.  A short advice or rolling down for a quick 418 might be a reasonably straightforward proposition when your diary is pretty clear, but would it be reasonable to take on that matter when you're backed up and far beyond capacity?


That's the distinction in terms of the assessment.  We don't say that these things are caused by it, but it's in that factual matrix that you assess the reasonableness.


Can I, just to demonstrate that point, take you to one of the very few authorities that I would labour you with.  This point's developed a little in obiter by Commissioner Wilson in Emery.  Can I ask you to turn up paragraphs 106 and following in the Emery case?


What the Commissioner was observing there, after having dispatched the expressed reasons for refusal, the Commissioner then deals with what emerged in the oral evidence, which was a concern by the decision‑maker that this might be a floodgate scenario, that is, we are starting to see an influx of these requests and we consider that we're not going to be able to deal with all of these.


Importantly, you'll see in the second half of paragraph 106 the evidence in that case simply didn't stack up with the nature of the concern, that is, it was a truly floodgates concern.  The concern might have been real, but the evidence wasn't such that that was in play at the time.


Of course, you see that observation made in paragraph 109, and this is pertinent here.  The Commissioner observes there, at 109:


Crudely put, it may well be that an employer has no reasonable business grounds to refuse the first flexible work arrangement request which might be made.


It may not even have reasonable business grounds to refuse the 30th, even on the basis of what may be worked by other employees.


However what of the 200th request?  Very plainly at some point the preponderance of approvals going before the one presently before an employer may well lead to the conclusion that there is a reasonable business ground available for the refusal of the request simply because too many other staff have arrangements in place with varying degrees of flexibility which means that the full span of unit work demands are not able to be filled by the available working hours of the available staff.


Notwithstanding that observation, I do not find that either Victoria Police or DSC Emery were in such place.


That is, on the facts there, the evidence didn't demonstrate that there was the kind of delta that I'm describing here, but the evidence in this case, the unchallenged evidence, is materially different.


THE DEPUTY PRESIDENT:  Not because of requests.


MR POLLOCK:  Not because of request, no.




MR POLLOCK:  But the Commissioner's analysis here, it's not the fact of 200 requests, it's the fact of there not being sufficient - what did he say:


Because too many other staff have arrangements in place - which means that the full span of unit work demands are not able to be filled by the available working hours of the available staff.


That's the material point that he's trying to raise here, and that's the issue that's in play here.  We are not in a world of being concerned that the sky might fall in, that there might be a floodgate situation.  The unchallenged evidence here is that we are already substantially behind where we need to be.


THE DEPUTY PRESIDENT:  I think Mr Stephens' argument was not so much a pursuit of floodgates, or opening it up.  I think his point was more blunt, which is, well, while your capacity constraints exist, the world is looking very bleak for anyone who makes a flexible work arrangement application, because in the circumstances where you've always got a shortfall, the reasonable business grounds put forward will be largely the same each time.


MR POLLOCK:  For a start, there's an assumption built in there that that will always be the case.  That's not the evidence.  There's no evidence to support a proposition that that will forever be thus, and in fact the evidence thus, and in fact the evidence that is available to you is that at least in Transit South Four, there's four/10 arrangements already in play.


I won't advance this terribly far given that there's not a preponderance of evidence before you on this, but it is certainly not the case that these are the only two - you know, that that's the only other four/10 arrangement that's in play within Victoria Police.  That's absolutely not the case.


It might be that for the period of time that these particular circumstances are in play in the particular part of Victoria Police's operations, that for a time maybe it might look bleak for an applicant at a particular point in time, but that's a function of an assessment of the reasonableness of the business grounds in context.  There's nothing inherently problematic about that.  It would be problematic if there were evidence that that was just always thus, and that might in turn bear upon again whether or not in that context it could be said to be reasonable.  That's not the evidence here.


THE DEPUTY PRESIDENT:  The evidence before me suggests that those circumstances, to some form or another, have been in existence since possibly the original request in April 2021 through to - and I'll check what some of the up-to‑date references of this go, but it could be up to July this year.


MR POLLOCK:  It's true that both requests were rejected.  You wouldn't say that it's the same factual matrix.  You've seen a range of evidence around particular operations, COVID‑19 operations, for example, that were in play but are no longer.  It would be a step too far to infer that because there was a request at one point and a request at the other, that that's a default position and the reasons are the same.


THE DEPUTY PRESIDENT:  No, I understand that.  Thank you.


MR POLLOCK:  You'll see in the written submissions some development of the reason concerning the high crime rates in the South Local Area Command.  This wasn't the subject of any cross‑examination today and it's certainly not something that's been the subject of submissions that my learned friend has raised.  I can rely on my written submissions with respect to that.


Suffice to just make the observation that all those relevant passages within predominantly the superintendent's evidence went unchallenged.


Insofar as there was - the only measure of challenges I recall - and again, without the benefit of the transcript, the only real measure of challenge was, I think, to paragraph 48 of the superintendent's statement, which concerned, you might recall, a trial of those waiting times at PODs at the stations, and it was suggested, well, that trial occurred after the refusal letter, and as a result, that's not relevant.


Again, you'll recall in re‑examination I asked the superintendent some questions around the extent to which those issues were in play at that earlier stage, but beyond those brief observations, I simply rely on my written submissions there.


I can extend the same observations in reliance on the written submissions with respect to the fatigue reason.  Again, none of that challenged in cross‑examination.


There was some discussion in opening around the reliance on what First Constable Azmi's wife might be doing or returning.  I think I indicated at the outset that we certainly don't suggest that that of itself provides a reasonable business ground.  Deputy President, we don't press it as a stand‑alone ground.


It's obviously part of the matrix that was assessed at the time.  I can advance it no higher than that, but insofar as we pin our colours to the mast, we pin them in the context of the shortfall and the high crime rate and the fatigue questions.


THE DEPUTY PRESIDENT:  Can I ask a question, and I should have asked Mr Stephens as well, the issue, as it is, of what was described, I think, variously as correspondence shifts ‑ ‑ ‑




THE DEPUTY PRESIDENT:  I might have crudely misunderstood it, but I understood the proposition being that there were things called correspondence shifts which were rostered reasonably regularly.  They were eight hours, ergo you take off those and add them at the start or finish of an eight‑hour shift to make it a 10‑hour shift.


MR POLLOCK:  Yes, and this is part of - you might have seen in First Constable Azmi's first witness statement he provides, I think, maybe a paragraph or two to explain why he says that this four/10 arrangement, paraphrasing, will be fine, and that's principally on the basis that, 'Well, you're getting 40 hours out of me whether you're getting it in four 10‑hour blocks or five eight‑hour blocks, and I can tack my corro work in those two hours in (indistinct).' That's the substance of it.


There are some real difficulties with that proposition.  These are dealt with in our written submissions at paragraph 50 and 51.  There are a few points to observe here.  The first is, as I think you can see in the way that the roster's structured, but certainly it emerges from the evidence of Senior Sergeant Billing and of Superintendent Humberstone, the operating model here is not a question of just adding the sum of hours, it's a question of being able to resource and fill shifts.


The primary position, of course, is that these shifts are eight‑hour shifts.  That's not to say that it is impossible to incorporate 10‑hour shifts into that type of roster, and again, we've heard evidence that such a thing has occurred in South Four, but the fact remains that those additional two shifts a fortnight have to be back‑filled.  It's not a question of you take them out of the roster, you're still getting the same numbers.  They have to be accommodated.


That's exacerbated in a couple of circumstances.  (1) you're already short and so you're shuffling deckchairs, robbing Peter to pay Paul, pulling people away from other things.  You don't have a surplus of people to pull.


My friend seems to suggest, again, on the premise of one van there's all these additional people and resources available.  There's no attempt to develop how that might be so beyond the maths that rest on this false premise.  No challenge by way of cross‑examination to the evidence of each of the three witnesses from Victoria Police that that's just simply not the case.


When one examines that selection of rosters that were put forward - and, Deputy President, of course, you're in perhaps a difficult position to draw too much from those given that witnesses weren't cross‑examined on their content, but what you'll see, in the main, you're not seeing a bunch of shifts that are just sitting there blank, ready to be filled.


You're seeing rest days, you're seeing leave days, and all of this, of course, is prescribed under a detailed and proscriptive enterprise agreement.  There's not flexibility to just pull people off these days and throw them into a van, as my friend suggests.


These are the difficulties that Superintendent Humberstone is talking about, about having to manage 17, 20-odd per cent of people being on leave at any given point in time.


You then add to that the two‑up rostering requirement.  So you can't just have one person off doing their own roster.  You've got to have someone else, another rank officer with them if they're going to be leaving the station and getting out into the field, and to that end, I direct your attention to paragraphs 40 to 43 of Campbell's statement and 74 to 75 of Billing.  I don't need to take you through it now, but just to take a note of those.


But as to this question of correspondence shifts, perhaps the most critical point here, Deputy President, is the proof was in the pudding, that is, in First Constable Azmi's case, you might recall that we were taken through a period of where he was performing light duties.  Whilst Superintendent Humberstone didn't know what the reason for that was and didn't know of what duties he might have performed, Senior Sergeant Billing did.


Can I take you to paragraph 55 through 60 of Senior Sergeant Billing's evidence, and here the Senior Sergeant is responding to First Constable Azmi's evidence at paragraph 36 of his first witness statement.  He's talking about precisely this issue.


Paragraph 56, Senior Sergeant Billing deals with how other ranked officers are now rostered for these shifts as opposed to in October 2021 when the request was first made, but importantly, can I draw your attention to 57 and 58.


Paragraph 36 of the witness statement, First Constable Azmi states:


As well as carrying out my correspondence/office work, I will be able to carry out typical correspondence tasks for other members, such as obtaining CCTV footage, taking witness statements and carrying out duties required during business hours.


Senior Sergeant says this:


This assertion is inaccurate.  Carrying out typical correspondence tasks for other members is not operationally necessary and generally those duties are allocated to officers on light duties in any event.


It is my direct experience that finding such correspondence tasks for officers on light duties is difficult, because there is generally insufficient work of that type to keep them meaningfully occupied.  Accordingly, there is simply no operational need or benefit to this additional correspondence time as asserted by First Constable Azmi.


And here:


When I first arrived at Frankston in February 2022, First Constable Azmi was on light duties due to the after‑effects of COVID‑19 infection.  I was unable to provide him with any meaningful correspondence or administration duties and allowed Frankston uniformed to utilise him to answer phones in reception.  This provided no benefit to Transit but was the only role I could find to offer him.


Again, none of that challenged in cross‑examination, Deputy President.


So what are you left with?  You are left with a case that is constructed really as a mathematical equation based on a false premise.  You are left with significant volumes of written and oral evidence that was not the subject of any direct challenge in cross‑examination.  There'd be no other apparent basis why you would not accept each of those three witnesses as being credible and reliable.


Insofar as there is a suggestion that their evidence in part post‑dated the date of the request, I'd urge you to examine the transcript, particularly with respect to the re-examination of Superintendent Humberstone and Senior Sergeant Billing to understand their direct knowledge of those matters as they existed at the time of the request and the response.


Perhaps I can just close with reference to that very pithy example that Senior Sergeant Billing gave.  We were talking about vans and sedans and SUVs and brawler vans and all of that, and in answer to the questions around how he would know how frequently this was done his answer was, 'Well, I've personally done it 10 times in the last year as a sergeant.'


Just pause to observe that, Deputy President.  That's not just 'I know that this is done this way because I've done it', this is 'I know because I've done it.  Because we don't have the resources available, I'm, as a sergeant, having to step in', and I think his oral evidence was 'bring a PSO in with me to assist to cover that gap'.


The idea that that would be the appropriate course to take, or that would be taken if there was this surplus of resources available simply doesn't hold up to scrutiny.  Unless there's anything else I can assist you with, I rely on my written submissions.  Those are the submissions of the respondent.


THE DEPUTY PRESIDENT:  Yes, thank you.


MR POLLOCK:  Thank you.




MR STEPHENS:  Just a couple of brief points, Deputy President, if I might.  My learned friend suggests that Senior Sergeant Billing's evidence was not challenged.  That's not indeed completely true, and I would echo his suggestion to review the transcript at the time, and in particular with relation to paragraphs 24 through to the end of his statement.


He was asked whether this was made based on the information after the time of the decision, to which he said words to the effect of 'Yes'.  So his evidence to the number of vans, the number of vehicles, who was in a van, who was in a sedan, and everything in that regard, he says, about his written evidence that - based on his experience of Frankston after the decision was made to reject First Class Azmi's flexible working arrangement.


Just briefly on the matter of this bleak picture that's painted for you for ORs at Transit South, in his oral evidence, Superintendent Humberstone was asked roughly how close to full capacity they were, or how many of the 32 positions were filled, and he said something to the effect of there might have been one or two vacancies.  So that's suggesting that they're pretty much running at full capacity.


He also says that that number takes into account, that is to say, it factors in, the fact that members need to be rostered on annual leave, or rec leave, as it's referred to.  Some members will go on WorkCover, some members will have children and take - all sorts of leave.


So to suggest that this is a particularly difficult period or a particularly difficult circumstance based on that would suggest that Transit South is funded and structured specifically in this way to never be able to cope with what its requirements are, and I don't think that is in fact the case.  I would put that the number, the 32, or even the 26 before it, have been thought through and do account for the ability for people to be on leave and on various forms of leave.


THE DEPUTY PRESIDENT:  I understood that to be the case, just to be clear on that, in that the funding model, I would have thought, intuitively, but it's for - I understood it was said, would reflect the fact that officers are going to take leave because they're entitled to.  So I think that's sort of built into the function.


What I think the Victoria Police witnesses were also saying, though, is that in addition to just sort of bodies on the ground, there were service obligations that were not being met, and that was the 156.


MR STEPHENS:  Yes.  I don't disagree with that.  I suppose the point to make here is that the argument that business as usual is a reason for rejecting a flexible working arrangement does paint this picture that no flexible working arrangement requesting 10‑hour shifts would be accepted, and that is in conflict with the fact that there is a flexible working arrangement with 10‑hour shifts at Transit South Four that has been accepted.


I think again this is reiterated in the oral evidence of Acting Senior Sergeant Billing - or it may have been Humberstone, but the transcript will say that, you know, there are never enough members, and quite frankly, that's what the majority of the respondent's submissions respectfully amount to, that there is this circumstance at the time.  It was the same on 12 April last year.  It was so in October, so in February, that there will never be a time where a 10‑hour shift flexible working arrangement can be maintained.


That's all I wanted to add further, Deputy President.


THE DEPUTY PRESIDENT:  Yes, all right.  Thank you.  That's of assistance.  I think, to perhaps give some guidance to the parties, there will be transcript.  I'm not quite sure whether that's going to make any difference to anyone now, but when it arrives you'll get a copy.


Because I've been invited there, I think, to look at some of the specific responses that have been given in relation to the evidence, I'll certainly do so, just to make sure that my notes are accurate in that respect.


Otherwise, in terms of timing, I will be doing my best to get a decision out to you all as quickly as possible.  I have a little bit of a backlog at the moment, in part created by my own doing with an overly-ambitious listing roster and perhaps a nave expectation that I could take two and a half weeks at a particular point in time and it would have no impact on my reserved decisions.  We all learn things.


So don't expect anything in the next sort of three to four weeks.  If I'm getting something in the five to six weeks mark, I'll be happy with that, but I just thought I'd mention that by way of gently setting expectations on that front.  But I am going to be doing my best.  You've raised some complex matters and I plainly need to go away and have a think about them.


I don't think, as an administrative matter - well, actually, no, before I say I don't think there's anything that needs to be done in relation to the email received in chambers just with some of those missing parts of the court book, from what I've seen on the email, it's not going to change the substance of it, but I'd still like to just get to the bottom of why a few little things dropped off.


So I'm not quite sure whether the email actually says you sent in the missing parts or not, but maybe just out of an abundance of closure there - the parties have just sent me a joint email.  If the parties could just send me, if nothing else, a joint email with 'This is what the pages should look like'.


MR POLLOCK:  Those pages.  Yes, of course.


THE DEPUTY PRESIDENT:  Yes, that'd be fine.  Other than that, I thank the parties for their assistance and I think we can adjourn.

ADJOURNED INDEFINITELY                                                            [3.27 PM]



SHAFIQUR AZMI, AFFIRMED........................................................................... PN82

EXAMINATION-IN-CHIEF BY MR STEPHENS.............................................. PN82

EXHIBIT #A1 FIRST WITNESS STATEMENT OF FIRST CONSTABLE SHAFIQUR AZMI (COURT BOOK PAGE 59).................................................................................... PN90


CROSS-EXAMINATION BY MR POLLOCK.................................................... PN95

RE-EXAMINATION BY MR STEPHENS......................................................... PN132

THE WITNESS WITHDREW............................................................................. PN141

ANDREW GEORGE HUMBERSTONE, SWORN........................................... PN147

EXAMINATION-IN-CHIEF BY MR POLLOCK............................................. PN147

EXHIBIT #R1 WITNESS STATEMENT OF SUPERINTENDENT ANDREW HUMBERSTONE (COURT BOOK PAGES 122-340)....................................................................... PN171

CROSS-EXAMINATION BY MR STEPHENS................................................. PN174

RE-EXAMINATION BY MR POLLOCK.......................................................... PN286

THE WITNESS WITHDREW............................................................................. PN303

LUKE BILLING, SWORN................................................................................... PN308

EXAMINATION-IN-CHIEF BY MR POLLOCK............................................. PN308

EXHIBIT #R2 WITNESS STATEMENT OF SENIOR SERGEANT LUKE BILLING (COURT BOOK PAGES 341-390)....................................................................................... PN318

CROSS-EXAMINATION BY MR STEPHENS................................................. PN340

RE-EXAMINATION BY MR POLLOCK.......................................................... PN379

THE WITNESS WITHDREW............................................................................. PN388

MATTHEW GLYNN CAMPBELL, SWORN................................................... PN393

EXAMINATION-IN-CHIEF BY MR POLLOCK............................................. PN393

EXHIBIT #R3 WITNESS STATEMENT OF SENIOR SERGEANT MATT CAMPBELL (COURT BOOK PAGES 391-461)....................................................................... PN406

CROSS-EXAMINATION BY MR STEPHENS................................................. PN409

THE WITNESS WITHDREW............................................................................. PN418