100425022

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT

PARTIES IAN WILLIAM CORNTHWAITE

CLAIMANT

 -v-

 MINISTER FOR POLICE & COMMISSIONER OF POLICE, WA POLICE SERVICE

RESPONDENTS

CORAM MAGISTRATE RH BURTON IM

DATE  FRIDAY, 10 SEPTEMBER 2004

CLAIM NO/S M 6 OF 2004, M 7 OF 2004, M 8 OF 2004 & M 9 OF 2004

CITATION NO. 2004 WAIRC 12836

_______________________________________________________________________________

Representation

Claimant  Ms L Roche (of Counsel) on behalf of the Claimant.

Respondent  Mr R Bathurst (of Counsel) on behalf of the Respondents.

_______________________________________________________________________________

Reasons for Decision

1         These claims were heard over a period of four days and were hotly contested.  At the conclusion of the hearing on 5 August 2004 I reserved my decision to obtain the transcript of proceedings so I could consider my decision and provide written reasons for the same.

2         Curiously, on 27 August 2004 I noticed and read an article on page 8 of the West Australian newspaper which was headed “Police were warned of on-call payout problem” which read inter alia:

“On Wednesday, Deputy Commissioner Chris Dawson refused to comment on Sgt Hill’s case.  …”

3         I am not certain whether the following comment can be ascribed to the Deputy Commissioner but the article went on:

“The on-call roster is only relevant for officers in charge of specific units, generally above the rank of senior sergeant or inspector, and officers attached to specialist sections, such as forensics experts or detectives.”

4         These are, of course, claims made by Senior Constable Cornthwaite, who is a scenes of crime forensics officer, for an allowance to be paid because he alleges that he was “on call”.  The Claimant also makes a claim for interest to be paid on the amounts found to be underpaid and seeks the imposition of a penalty for breaches of the relevant industrial agreements as a result of the failure to pay the allowance.

5         I should at the start of this decision say that I made some comments at the opening of the hearing that I would not entertain an application for pre-judgement interest.  I have changed my mind about that because the Full Bench of the Western Australian Industrial Relations Commission in the matter of Hill v Minister for Police and Another (unreported, Appeal No FBA 12 of 2004, delivered on 24 August 2004, Citation No 2004 WAIRC 12493) has said such a claim may be made.

6         The relevant industrial agreements are:

• Western Australia Police Service Enterprise Agreement for Police Act Employees 1996 No AG 274 of 1996 (the 1996 Agreement).
• Western Australia Police Service Enterprise Agreement for Police Act Employees 1998 No AG 129 of 1998 (the 1998 Agreement).
• Western Australia Police Service Enterprise Agreement for Police Act Employees 2001 No PSAAG 8 of 2001 (the 2001 Agreement).

7         The claims allege 116 breaches of the industrial agreements resulting in a total underpayment of $80,271.09, the details of which are as follows:

•                               M 6 of 2004 covers the period from 9 January 1998 to 18 March 1999 comprising 48 weeks or 24 pay periods.  This claim alleges 24 breaches of the relevant agreement leading to an underpayment of $17,839.87.
•                               M 7 of 2004 covers the period from 19 March 1999 to 3 December 2000 comprising 92 weeks or 46 pay periods.  This claim alleges 46 breaches of the relevant agreement leading to an underpayment of $30,102.98.
•                               M 8 of 2004 covers the period from 4 December 2000 to 18 September 2001 comprising 44 weeks or 22 pay periods.  This claim alleges 22 breaches of the relevant agreement leading to an underpayment of $17,000.58.
•                               M 9 of 2004 covers the period from 19 September 2001 to 1 August 2002 comprising 48 weeks or 24 pay periods.  This claim alleges 24 breaches of the relevant agreement leading to an underpayment of $15,327.66.

8         At this point I would adopt what was said by my brother Industrial Magistrate G Cicchini in the matter of Khng and Nind v Minister for Police and Another (2004) 84 WAIG 1139 when he referred to the industrial agreements.  He said:

The Agreements

The Claimants say that they were at all material times “on-call” to perform their duties and thereby met the provisions of clause 16 (the 1996 Agreement) and clause 19 (the 1998 Agreement) which entitled them to the payment of an “on-call” allowance during such material periods.  Clauses 16 and 19 differ only in that the formula for the calculation of the hourly rate found in clause 16(2) in the 1996 Agreement has been replaced by an actual dollar value in the 1998 Agreement.  Other than that the provision remains the same across both agreements.

I now set out the relevant portion of the clause:

ON CALL - CLOSE CALL - STANDBY ALLOWANCES

(1) For the purpose of this clause: 

 “on-call” shall mean a situation in which an employee is rostered, or directed by a duly authorised senior officer, to be available to respond forthwith for duty outside of the employee's ordinary working hours or shift. An employee placed on call shall remain contactable by telephone or paging system for all of such time unless working in response to a call or with the consent of his or her appropriate senior officer.

 "Close-call" shall mean a situation in which an employee is rostered, or directed by a duly authorised senior officer, that they are or may be required to attend for extra duty sometime before their next normal time of commencing duty and that the employee is to remain at his or her residence and be required to be available for immediate recall to duty. 

 "Stand-by" shall mean a situation in which an employee is rostered or directed by a duly authorised senior officer to remain in attendance at his or her place of employment at that time, overnight and/or over a non-working day, and may be required to perform certain tasks periodically or on an ad hoc basis.  Such employee shall be provided with appropriate facilities for sleeping if attendance is overnight, and other personal needs, where practicable.

(2)    (a) An employee who is authorised by the Commissioner or a duly authorised senior officer to hold themselves available under any of the conditions contained in subclause (1) shall be paid the appropriate allowance in accordance with the following scale:

………

(3)     Payment in accordance with subclause (2) shall not be made in respect to any period for which payment is otherwise made in accordance with the provisions of Clause 18. - Overtime when the employee is recalled to work.

(4)     An employee, whilst in a restricted situation specified in subclause (1), shall receive a minimum payment of four (4) hours regardless of the actual specified period.

(5)     An employee rostered according to subclause (1) shall for the purpose of overtime, be deemed to have commenced duty at time of notification of recall.

Relevantly the “Hours” clauses in the agreements provide inter alia at clauses 7(1) and 16(1) respectively as follows:

(1)   (a) The ordinary hours of duty for employees other than commissioned officers, country resident officers in charge and metropolitan officers in charge as defined and those under the arrangements provided under subclause (8) of this clause shall average forty (40) per week to be worked as 8 hour shifts over any 5 days of the week.

The “Hours” clauses in the agreements also contain a provision that relates to “rostering”.  The provision is found in clause 7(2) of the 1996 Agreement and in clause 16(6) of the 1998 Agreement.  It provides:

A roster shall be posted at each place of employment not later than 1.00pm on the Tuesday preceding the week to be worked showing hours of duty and rest days for the ensuing week.  Such roster may be varied or suspended by the Officer in Charge in an emergency or where such action is in the public interest.

It will be obvious therefore that police officers are required to work a forty hour week in accordance with a roster prepared by their Officer in Charge which might be varied or suspended in the case of an emergency or by reason of public interest.

Subclause (1) of the “Overtime clause” in each agreement provides (clauses 17 and 18 respectively):

An employee may be required to work reasonable overtime and such employee shall work overtime in accordance with such requirement.

Accordingly it will be seen that the requirement for an officer to be on duty outside of normal working hours may be constituted by either having to work overtime or alternatively being “on-call”, on “close-call” and on “stand-by”.  Any overtime performed is paid at penalty rates as provided by the overtime clause.  The requirement to be “on-call”, on “close-call” and on “stand-by” attracts an allowance with the subsequent return to work whilst “on-call”, “close-call” or “stand-by” attracting penalty rates.  Recall to duty whilst on “on-call”, on “close-call” and on “stand-by” envisages a requirement that must be met.  On the other hand a recall to duty outside of those circumstances imparts some discretion on the part of the officer as to whether in that particular instance he or she will do overtime.

On 13 October 1989 the then Commissioner of Police, Mr Bull, published a notice concerning “On-call Allowance”.  The notice published in the Police Gazette on 18 October 1989 (exhibit 17) provided:

ON-CALL ALLOWANCE

It is notified for general information that the requirement that members not be placed “on-call”, “close call” or “stand-by” without the express approval of the Assistant Commissioner for the portfolio concerned as published in the Police Gazette 47 on December 2, 1988, is withdrawn.

Authority to approve these allowances is now delegated to the relevant Regional Officer or Branch Head.

Regional Officers/Branch Heads are to ensure they are familiar with these provisions of the Award and that they are used in the appropriate circumstances.

Full overtime is not to be approved when one of the “on-call” categories can be properly applied; and correspondingly, members' proper entitlements are to be fully met on all occasions.

Members are reminded that where they are in receipt of allowances for “on-call”, “close-call” or “stand-by”, they are required to be ready and capable of returning to duty when called upon.

Any queries relating to the interpretation or application of the allowances are to be directed to the Chief Superintendent Personnel Systems via Netmail or to the Employee Relations Officer or Industrial Relations Consultant located on the 5th Floor, 169 Hay Street, East Perth, telephone 222 1348.  The Employee Relations Officer will monitor usage to ensure the proper and efficient implementation of the allowances.

B. BULL,

Commissioner of Police.

October 13, 1989.

9         The relevant clauses of the 2001 Agreement are the same as those in the 1998 agreement with a higher dollar value in the 2001 Agreement.

10     The Claimant was the sole scenes of crime officer or forensic officer for the Pilbara area of Western Australia based in Port Hedland and South Hedland.  My rough calculations show that area to be about twice the size of Great Britain or half the size of Egypt; 550,000 square kilometres.  That area included 16 then 14 towns.  The busiest town was South Hedland and that is why the officer was stationed there.

11     The Claimant commenced duty on 12 January 1998 and it is alleged that Inspector Squires from the Perth Forensic Department told him he would be on call twenty-four hours a day, seven days a week and that this was repeated by Detective Sergeant Ronald Clarke who was the detective in charge of South Hedland.

12     Officers such as the Claimant are expert evidence gatherers and work very closely with the detectives.  Training takes 5 to 7 years.

13     I have to decide, on the balance of probabilities, whether a duly authorised senior officer directed the Claimant to be on call.

14     If an officer is properly placed on call an hourly allowance is payable for all hours spent on call whereas for overtime the officer is paid the rate of time and one half for the first three hours and double time thereafter for hours worked in excess of forty hours in a week.

15     Some time after he started in the position he was provided with a special vehicle that carried his equipment.  He had a mobile phone, the number for which was placed on the notice boards of all the area police stations.

16     I find having heard the evidence that the Claimant did a great deal of work and much of it was after hours and that there must have been considerable family disruption because of that work.  I also note in this regard that the Claimant was paid a lot of overtime.

17     I agree that the Claimant must obey lawful orders and there may be disciplinary proceedings if there is not obedience.

Evidence for the Claimant

Ronald Francis Clarke

18     Mr Clarke was the detective in charge of South Hedland at the relevant time and had spent twenty-nine years in the police service, serving in many places in many different capacities.

19     He said that he was the officer responsible for the scenes of crime officer.  There was some dispute about this in later evidence and I find that the officer in charge of the station was the person directed to be responsible, but that Detective Sergeant Clarke became, de facto, the responsible officer as the Claimant worked closely with the detectives.  I find that various officers in charge of the region, who perhaps should have checked, did not, on the basis that the system was working and not causing problems.

20     The North-Eastern Police District extended from Koomerina Station, which is half-way between Meekatharra and Newman, and across to Coral Bay (and until recently as far as Kununurra) and across to the Northern Territory border.  It would take four hours to drive across.

21     The Claimant worked Monday to Friday day shift and every second Saturday.  I come to the conclusion that there was a great deal of work in the area for the Claimant.

22     I find as a fact that Detective Sergeant Clarke directed the Claimant to be on call twenty-four hours a day, seven days a week and that he was directed to be contactable and was contactable for the vast majority of the time.

23     At first the Claimant had to find a vehicle to attend crime scenes and but later he was supplied with one fitted with a long-range radio.

24     There were some repercussions when neither the Claimant nor anyone else was available on one occasion when a crime scene had to be examined.  I find that several senior officers expected that the Claimant would be available at any time.  I also find that it was very important that scenes of crime officers should be available immediately.

25     The Claimant had to fill out vehicle commuting approval forms on a three-monthly basis.  Some of those were produced in evidence and one in fact used the expression “on call”.  That form, however, was not signed by the commanding District Officer.  The evidence was that the Claimant asked the Respondents for all the approval forms and never received them and I find that more than a little bit odd.

26     At one stage the Claimant had the vehicle taken from him, but it was later returned to him because of operational difficulties.

27     The Claimant had to keep the witness informed of where he was and where he was going to on each occasion.  He was allowed to take the vehicle on semi-private occasions so he could respond if necessary.

28     There was concern about budgetary matters relating to spending on the supply of services.

29     The witness was subjected to cross-examination and I should here state that I look at this witnesses’ evidence without considering the fact that he has been stood down as a result of the Police Royal Commission.  I also note he has claimed a fair amount of overtime.

30     He stated that the detectives were never placed on call and he did not have authority to put the Claimant on call and no district officer told him to place the Claimant on call.  All officers, however, had to be available to attend to reasonable overtime.

31     I find that there was really no other scenes of crime officer and if one was needed he or she would have to come from outside the district.  There was an officer with far lesser experience sometimes available.

32     I note that the witness has said that if this claim were successful he would also claim.

Ian William Cornthwaite.

33     Mr Cornthwaite said that he worked a forty-four hour week in shifts as he was then north of the 26th parallel.  He did 7 years training for the position.

34     When he first arrived in South Hedland Detective Sergeant Clarke told him he was to be available twenty-four hours a day, seven days a week.  He was provided with equipment and a mobile phone as he was to be available at all times.  The vehicle was supplied so that he could attend crime scenes more quickly.  Permission to have the vehicle had to be applied for every three months.  The reason for the car being supplied was so that he could attend crime scenes after hours and take his specialist equipment with him and this occurred on a lot of occasions.  One form that he was given stated that he was “to attend call-outs of an urgent nature”.  Another signed by a Mr Pottinger used the words “due to being available 24 hours a day”.  Yet another used the words “on call 24 hours”, but it was not signed.

35     Before leaving for South Hedland Inspector Squires of the forensic branch had told him he was to be available twenty-four hours a day but that he would not be paid an on-call allowance.  That statement was hearsay.

36     He said he brought up the matter of being on call with Acting Inspector Walsh in 1998 or 1999 and there were discussions about being put on call rather than being paid overtime.  It ended with him being told that he was to be available but he would not be paid.

37     As I have said above I find the Claimant was called out frequently after hours.  He said he claimed overtime but not on every occasion.

38     Sometimes officers on the spot would secure a scene and the Claimant would attend later.  This depended on the nature of the alleged crime and in some cases it was very important that he attended as soon as possible.  On some occasions he was recalled from annual leave.

39     There was a Senior Constable called Reynolds who had had some training and he assisted on several occasions. Officers from Perth or Broome also assisted on some occasions.

40     At the time he was married and had two daughters.  On one occasion when his wife was out and he was baby-sitting, his wife was brought back to their house so that he could be freed to attend a crime scene.  His job interfered with his sports of bowling and fishing and his social life in general but he believed he had to do the job or be moved out of it.

41     He said he was of the opinion that he got the vehicle supplied on the basis of the necessary equipment to be carried and frequent recall to duty.  He believed he had to be on call as his superior officer Clarke had told him to.

42     It was some time in 2002 that he became aware that he was entitled to an on-call allowance.

43     When he was cross-examined the Claimant agreed he had to work a reasonable amount of overtime, but for a good reason he could refuse.  In the case of an “on call” situation an officer would be required to return to work immediately.

44     No District Officer placed him on call and he was never told he could not drink.  He had consumed alcohol while off duty.  On several occasions he had drunk sufficient to be unhappy about driving a vehicle.

45     He was told he was not going to be paid the allowance so he never put in a claim for the on-call allowance.  He did, however, claim overtime.

46     Before he was given a vehicle he would go to the station and persuade someone to give him a vehicle to attend a crime scene.

47     The Claimant made the point that night driving could be dangerous.

Winston Thomas Neville

48     Mr Neville is a retired Chief Superintendent from the forensic division.  He said the officers worked in shifts, and at that time there was an on-call person.  There was no recompense for being on call.  He established the country scenes of crime system and the officers he interviewed for the various jobs had to be available after hours and to be on call.  If they were unable to make themselves available they did not get the job.

49     It was thought that one officer was sufficient for South Hedland because of the amount of work.  The detectives looked after the scenes of crime officers under the forensic division.

50     On-call allowances were discussed at a district level but is was not financially possible to pay it.  At one stage there was a six hour overtime payment for being on call.

51     Mr Neville retired from the service in 1995.

52     That was the claimant’s case.

53     In relation to the Respondents’ case Mr Bathurst made an opening statement and said that the pivotal issue was whether the Claimant had been rostered, or directed by a duly authorised senior officer to be on call and available forthwith outside his ordinary working hours.  Officers had to do a reasonable amount of overtime, but could be excused for good reason.

54     This claim, unlike the Hill matter (supra) involved a police district headed by a District Officer of the rank of Superintendent.  Really the District Officers were Police Chiefs for their district.  That officer had never directed the Claimant.

55     He submitted that evidence would be led to show that there was a conscious cost decision made not to place officers on call and that there was a welfare issue.  He also submitted that it was improper to have one officer available twenty-four hours a day, seven days a week.  He said it was a question of how important the recall was as to whether the Claimant returned to work.

56     Detective Sergeant Clarke could not direct the Claimant and there was no compulsion on the Claimant to return.

57     The Claimant was paid overtime.  He never claimed an on-call allowance and knew if he submitted such a claim it would not be paid.  The direction by Detective Sergeant Clarke was not a lawful order.

58     This jurisdiction is not subject to the equity, good conscience and substantial merit rule as is the Western Australian Industrial Relations Commission.  There must be strict proof of the direction.

59     The Claimant was not always in a position to respond forthwith for duty.

Evidence for the Respondents

David Eacott

60     Mr Eacott is the Principal Employee Relations Officer for the police service. He explained the difference between being recalled for overtime and being on call. This has been dealt with above.

61     Under cross-examination Mr Eacott stated that if an officer is on call he or she must be contactable and ready to return.

62     He said that now, and for the period of the last twelve months, District Superintendents were duly authorised senior officers.

63     The authority to place an officer on call was in the hands of Deputy Commissioners but as at 16 May 2003 he was still finding out whether there had been other delegations as the issue was crucial to other matters before this Court.

64     He conceded that a duty can be performed without an officer leaving his residence. That is a proposition I agree with.

William Matson

65     Mr Matson was the District Officer for the Pilbara from September 1996 to January 1999.  The Claimant was a district resource within his area of responsibility.  He had run officers on call at previous times.

66     In 1989 there was a notice from the Commissioner stating that the power to approve such allowances was delegated to the relevant regional officer branch head.  He stated that he never placed the Claimant on call either directly or indirectly or through any other person.  He said he did not have the power to delegate that function.  He said overtime could be claimed but he did not have the budget to place the Claimant on call; that would have cost about $24,000.00 per annum.

67     Mr Matson maintained that it would be unsafe to have the Claimant on call because of the amount of work and the distances to be travelled.  He said the Claimant was directly responsible to the Senior Sergeant of the police station.  He said Detective Sergeant Clarke did not have authority to place the Claimant on call and that no restrictions were placed on the Claimant’s after hours activities.  If an incident occurred someone would ring the Claimant to see if he was available for recall and he would be paid overtime.

68     If he was not available other arrangements would be made through other officers and or the use of a plane to get someone else.  Failure to be available for overtime would not generally be the subject of disciplinary proceedings.  If the Claimant had drunk too much alcohol to be able to drive then others would secure the scene or perhaps someone else would be brought in.  There was a great deal of driving in some cases.

69     No claim was ever made for the on-call allowance by the Claimant, and if it had been, then it would have been refused.

70     When cross examined Mr Matson said that he knew it was only District Officers who could place officers on call.  He also conceded that he knew the Claimant was the second scenes of crime officer to be sent to the area.  He said that he thought that the Claimant should have been reporting to the officer in charge of the station not the senior detective.  He did not know the details of the Claimant being called out but he would be required to come back to work.

71     He would not know all the details of the overtime worked, but would know, so far as the district budget cost was concerned.

72     He maintained that a mobile phone was regarded as a tool of the trade and for use after hours.  A designated vehicle would help on response times.

73     The Claimant was not replaced when he was on leave or on training; it was the case that other arrangements were made.

Raymond Charles Pottinger

74     Mr Pottinger was formerly a Superintendent in the Western Australia Police Force.  From January 1999 to February 2002 he was the District Officer for the Pilbara.

75     He said that he expected the Claimant, if available, to attend when called in.  He did not expect the Claimant to be always available after hours but when he was recalled and he came in, he was to be paid overtime.

76     The only officers who were to be available twenty-four hours a day, seven days a week were Inspectors.  The Claimant was not replaced when on leave as it was the case that others were brought in.

77     The Claimant was never placed on call by the witness, who was the only person able to place any officer on call.  His after-hours activities were not restricted nor would he have been disciplined if he had been drinking.

78     Mr Pottinger said that the sort of incident would dictate how urgent it was for the Claimant to attend.  He had a vehicle supplied so that he could respond quickly.  Such vehicle had been supplied at the witnesses’ discretion under the written vehicle policy so it was not for private use.  It was designed to reduce overtime.

79     He said he was what amounted to the Chief of Police for his district and as such he had signed vehicle use approvals for the Claimant’s vehicle.

80     It seems to me that various reasons were given for the Claimant needing a vehicle.

81     One reason was “Due to being available 24 hours a day to attend major and minor crime scenes throughout the Pilbara district and to have necessary forensic equipment stored in the vehicle”.  Mr Pottinger said that this did not put him on call; it meant “if he was available”.

82     Another reason was because he was “On call 24 hours to attend the scenes of crime and convey the necessary equipment to examine scenes”.  This was not signed and Mr Pottinger did not remember having seen the document.  He said he would not have signed his approval of that as it used the words “on call”.

83     He knew that the Claimant had a mobile phone.

84     He would have rejected any claim for an on-call allowance.

85     When cross-examined Mr Pottinger said that he never raised the issue or had it raised before him that the Claimant was not reporting to the officer in charge but rather to the senior detective.

86     He conceded that Detective Sergeant Clarke frequently raised the issue of being on call as it was rejected for budgetary reasons.  There was a lot of overtime worked and he would not know how frequently the Claimant was called out after hours.  He was required to come in if available.  He was told that District Officers were the only ones in the district who could place an officer on call.

87     He denied the vehicle was supplied to the Claimant on a “justifiable need” basis but he agreed that the particular vehicle approval quoted above meant that the Claimant had to be available twenty-four hours a day.  He disagreed about its interpretation as stated in his evidence in chief.

88     Mr Pottinger could not recall seeing the unsigned vehicle approval form using the words “on call 24 hours” and he said it may not have been presented to him, or may have been presented and rejected by him or replaced by another.  I am a little surprised that if it were presented to him that he would not have marked it “rejected” in some way.

89     He maintained that he did not know anything about the missing vehicle use approval forms.

90     The police service, he said, is a hierarchical organisation and junior officers are expected to obey the (I insert the word "lawful") commands of senior officers.

91     Mr Pottinger stated that there was no handover from the previous Superintendent to him on his arrival.

Catherine Mary Bullen

92     From May 2000 to June 2001 Ms Bullen was the Assistant District Officer for the Pilbara.  She said she had in the past placed officers on call for a particular operation.  To place an officer on call there would need to be a specific urgent need.  Being on call causes a health and welfare problem.

93     She said she could not remember placing the Claimant on call and there was no reason for him to be placed on call.  She had conversations about being on call with Detective Sergeant Clarke, but not the Claimant.  He worked on a recall basis on overtime.  That included extra time to complete a job.

94     When cross-examined Ms Bullen said she was responsible for crime and the investigators’ practices review.

95     She reiterated that she never told Detective Sergeant Clarke that the Claimant had to be on call.

Addresses

96     Mr. Bathurst addressed on behalf of the Respondents and emphasised that the burden of proof, and the burden of strict proof, not equity, good conscience and the substantial merits of the case as it is in the Industrial Relations Commission, is on the Claimant.  The Claimant must satisfy the Court on the balance of probabilities that the three agreements previously mentioned have been breached.

97     There is alleged to be a breach of three industrial agreements by not paying the Claimant an on-call allowance.

98     Counsel referred me to the case of Khng and Nind (supra) from which I have quoted at length and which dealt with claims by two police officers who had placed themselves on a roster to handle similar work.  The Court there found that there was no direction by a duly authorised senior officer and the claim failed.

99     To be on call a police officer must be “rostered, or directed …”and the Court found and, in my opinion, found correctly that the comma should be disregarded as it was not present in another part of the agreement.  I find that even if the comma is there, that rostering a police officer on call is something of sufficient import, particularly as to the budget, that it should be only with the appropriate senior officer’s consent.

100  An officer is required to work reasonable overtime, but can be excused on occasion for good reason.  The difference between being on call and on overtime is that in the former situation the police officer must be immediately available to return to work.

101  In the Respondents’ submission the claim must fail because the Claimant was not directed to be on call by a duly authorised senior officer, in this case the District Superintendent.  Of course he cannot place himself on call.  There must, at the very least, be a specific oral direction.  That is what is stated in Khng and Nind (supra).

102  Mr Bathurst referred to the case of The Civil Service Association v WA Fire Brigades Board (unreported, Industrial Magistrate’s Court (WA), IG Brown IM, No 124 of 1990, delivered on 21 September 1990),wherein it is stated that a direction must come from a duly authorised senior officer and at least be oral.  He submitted that the authorised person cannot delegate his authority.

103  The case of Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1985-1986) 162 CLR 24 states that it may be an administrative necessity that a delegate exercises the power, perhaps where the power is given to a Minister of State.  Even in those cases the Minister must authorise the action.

104  Those cases do not apply, it was submitted, as we are here not dealing with a statute, but with industrial agreements.

105  I have set out above the provisions of clauses 19(2)(a) wherein the power is given to the Commissioner or a duly authorised senior officers and it is clear that this situation is not one of administrative necessity.

106  Duly authorised senior officers are defined in exhibit 2 and that document has been set out earlier herein.  Duly authorised senior officers are the relevant Regional Officer or Branch Head.  The officers concerned knew that, by delegation, the power to place an officer on call had been given to them.  No one else but those officers could give such a direction.  Detective Sergeant Clarke was not such an officer and admitted in evidence that he had no power to place an officer on call.

107  The Claimant admitted in evidence that he was never told by a duly authorised senior officer that he was on call.

108  Retired Superintendent Neville said the officers were to be on call, but that was well before the date of this claim.

109  A forensic officer was a district resource.

110  Inspector Squires mentioned on call but he was never called and the evidence is hearsay.

111  Detective Sergeant Clarke directed the Claimant to be on call twenty-four hours a day, seven days a week, but no duly authorised senior officer directed Clarke himself.

112  I accordingly come to the conclusion that no senior officer orally directed Clarke to direct the Claimant to be on call.

113  It is clear that Superintendent Matson had previous experience of placing officers on call but he had not so instructed Clarke.  Superintendent Pottinger had not given a direction as the clause requires, nor had Superintendent Bullen.  She thought it was unfair to do so.

114  The staffing arrangements in 1998 referring to the Claimant states his hours to be 8.00 am to 4.00 pm plus on call from 8.00 pm to 4.00 am plus recall.

115  It is the case that Detective Sergeant Clarke has a financial interest in this decision.

116  The Claimant would not have been disciplined if he had refused to return to work when asked.  There were alternative arrangements.

117  Detective Sergeant Clarke’s direction was plainly not lawful.

118  I find that for all intents and purposes the Claimant was available.  There were only a couple of times that he was not.  I find that his after-hours activities were not restricted.  It could take up to eight hours to get to a crime scene in the district and sending a plane to get him would not be a satisfactory arrangement.  Sometimes he drank alcohol and the baby-sitting incident does not constitute being on call.  At times he was not contactable and neither the supply of the vehicle nor the supply of the phone to the Claimant proves he was on call.  I come to the conclusion that is in fact so.

119  The vehicle was supplied under the Superintendent’s discretion.  The “on call” words on the vehicle supply form were on an unsigned form and Superintendent Pottinger has explained in evidence what was meant by being available for twenty-four hours.  The Claimant’s phone number on station white boards was for information only.

120  Ms Roche addressed on behalf of the Claimant.  She submitted that the Claimant was very experienced and that he was told by Detective Sergeant Clarke that he was on call.  She submitted that Superintendents Matson and Pottinger had told Clarke to place the Claimant on call.  I find on the balance of probability that that was not the case.

121  The approval of on-call allowance by Commissioner Fielding (as he then was) in the Police Union case I find not to be relevant as it merely dealt with setting up the allowance.

122  The breathalyser and sexual assault cases are not relevant as the issue here is whether a duly authorised senior officer has place the Claimant on call.

123  I find that there is no ambiguity about the delegation as all relevant officers knew of it, at least by word of mouth.

124  Ngo’s case is one of administrative necessity and that doctrine does not apply here as I have industrial agreements before me not a statute and there is already a delegation from the Commissioner.

125  I find that in the case before me the delegate cannot delegate.

126  I find that there was no specific direction in writing or orally.

127  I decide that Detective Sergeant Clarke was not given a direction by the Superintendent and I find that Clarke was not a duly authorised senior officer.

128  The Claimant was the only forensic officer in this vast area and he obviously worked very hard.

129  Counsel referred to the vehicle commuting forms mentioned above and the fact that a lot were not available.

130  I find that somewhat suspicious but I cannot draw from that a conclusion as to what was on them.  I do note the endorsements were getting closer and closer to authorising on call status.

131  It was the Claimant’s job to attend crime scenes.  I find that Superintendent Neville was not the responsible officer.  The District Officer ran and oversaw the show.  I act on the evidence put before not on the evidence of witnesses not called.  I cannot, and do not, resolve this matter on the basis of what is unconscionable.

132  I should say that the Claimant’s address mentioned all the matters raised by the Respondents and argued for the opposite interpretation.

Determination

133  The task of this Court is to decide these claims without fear, favour or affection on the evidence and arguments produced before it in the proceedings.

134  I find that Acting Inspector Walsh told the Claimant to be available but that he would not be paid except by way of overtime.  I find that that is not putting the Claimant on call.

135  I was concerned that the Claimant was the sole forensic officer for such a vast area with so much work and that he did that work.  That reminded me of the case of Gill v Commissioner of Health (2003) 83 WAIG 532 where the Claimant, Dr Jag Gill, was the sole medical officer for the State of Western Australia for communicable disease control.

136  I decide that being on call twenty-four hours a day, seven days a week could affect one’s health.

137  I have said above that the Claimant was substantially available with a few exceptions.  I note that in the Hill case (supra) the Full Bench deducted on-call entitlements for the very few occasions when Hill herself was not available.  That would suggest to me that it is not fatal to an on-call allowance claim if there were a very few occasions when an officer who was not on call was not available.  I come to the conclusion, however, that there still must be the required direction.  In the Gill case (supra) there was such a direction.

138  I dismiss the claims, as the Claimant was not directed by a duly authorised senior officer to be on call.

RH Burton

Industrial Magistrate