100425617

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT

PARTIES CHRISTOPHER LANGDON HOATH

CLAIMANT

 -v-

 MINISTER FOR POLICE & COMMISSIONER OF POLICE, WA POLICE SERVICE

RESPONDENT

CORAM MAGISTRATE WG TARR IM

DATE  WEDNESDAY, 27 OCTOBER 2004

CLAIM NO/S M 59 OF 2004, M 60 OF 2004 & M 61 OF 2004

CITATION NO. 2004 WAIRC 13317

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Representation

Claimant  Ms L Roche (of Counsel) appeared for the Claimant.

Respondents Mr R Bathurst (of Counsel) of the State Solicitor’s Office appeared for the Respondents.

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Reasons for Decision

1         The proceedings in this matter were commenced by the filing of three claims alleging that each Respondent has failed to comply with an industrial agreement.  The claims are made pursuant to section 83 of the Industrial Relations Act 1979.

2         It was necessary for the Claimant to file three claims because over the period of the claims there has been an amendment to the relevant legislation and there are two industrial agreements that have application.

3         Quite properly the claims were heard together and for the purpose of the hearing and these reasons they have been treated as one.

4         It is agreed by the parties that the Claimant is a serving member of the Police Force of Western Australia appointed under section 7 of the Police Act 1892 and currently has the rank of sergeant.  He commenced employment on 5 March 1984.

5         Prior to 4 December 2000 the Claimant’s employer was the Minister for Police as admitted in claims M 59 and M 60 of 2004.  Upon the enactment of the Industrial Relations Amendment Act 2000 and with effect from 4 December 2000 the Commissioner of Police became the Claimant’s employer as admitted in claim M 61 of 2004.

6         The two relevant industrial agreements are the Western Australia Police Service Enterprise Agreement for Police Act Employees No AG 274 of 1996 which applies to claim No M 59 of 2004 and the Enterprise Agreement which replaced it No AG 129 of 1998.

7         It is the Claimant’s claim that for the period between 1 March 1998 and 18 September 2001 he was “on call” and is entitled to be paid an on-call allowance for that period as provided for in the agreements.

8         Both agreements provide for the payment of an on-call allowance and both define “on-call” identically as meaning:

. . . 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.

9         The evidence of the Claimant, which is generally not in dispute, is that he commenced working in the forensic division of the Western Australia Police Service in 1988 and has been so employed since then.

10     In 1994 he applied for and was appointed to the position of the Mandurah Scenes of Crime Officer.  He was the only specialised forensic officer stationed at Mandurah and his area of responsibility varied somewhat during his time there but it generally covered the Peel District.  During the period he was responsible to the Superintendent of the forensic branch then, following the implementation of the Delta Program, to the South West District Superintendent and later to the Peel District Superintendent.

11     The Claimant claims he is entitled to be paid an on-call allowance for the period of the claims because he was required to be available after hours seven days a week to be called out to a crime scene for forensic purposes and he made himself available for that purpose.  It is not in issue that he was issued with a police vehicle and a pager.  The vehicle was taken home by him and garaged at his home and contained all the forensic detecting equipment necessary when he attended a crime scene.  The fact that all the necessary equipment was kept in the vehicle was another reason why the vehicle was secured at his home and not left at the relatively insecure police station over night and on weekends.  There appears to be no issue with the Claimant’s evidence that his pager number and home telephone number were displayed at the police stations within his region of responsibility and later his mobile telephone was used instead of the pager.

12     I do not think that there is any doubt that the Claimant was, and probably still is, a dedicated and enthusiastic police officer who accepted the position at Mandurah with the intention of providing the district with the forensic services that were required.  He was prepared to accept the requirement that he reside within the area of his responsibility.

13     Retired Superintendent Winston Neville, who was called by the Claimant, gave evidence that he was the officer in charge of the forensic division and responsible for the implementation of the placement of scenes of crime officers in the major country regions throughout Western Australia.  He was in charge of the process of selecting officers for the Peel district office at Mandurah and it was his expectation and requirement that the successful candidate would be available to attend crime scenes throughout his region at any time.  Notwithstanding that such expectation and requirement may involve some imposition on the officer’s social life; he was to make himself available after hours.

14     Retired Superintendent Neville said there was no on-call allowance because the hierarchy of the Police Service would not accept the fact that it was a necessary expenditure and that was as a result of budgetary constraints.  He did not say that the issue of on-call allowance was discussed during or after the selection process nor is there any evidence before me that either then Superintendent Neville or the Claimant turned their minds to the issue of an on-call allowance.  None was offered or claimed during the period from the Claimant’s appointment until Mr Neville’s retirement or, as I understand the evidence, until the Police Union pursued the issue prior to lodging the claims on 5 March 2004.  He did say, however, that if the Claimant did not make himself available after hours he would be of limited value to the organisation and would be replaced by someone who would.  That did not become an issue because the Claimant accepted those conditions.  Superintendent Neville retired in September 1995.

15     It is based on Superintendent Neville’s directions and requirements that the Claimant claims he was entitled to an on-call allowance and that the Respondents are in breach of the conditions of the industrial agreements in that regard.

16     The entitlement to on-call allowance is provided for in clause 16 of AG 274 of 1996 and clause 19 of AG 129 of 1998.  As I have mentioned, the definition of “on-call” is identical in each agreement.

17     To be entitled to an on-call allowance an employee must have been “rostered, or directed by a duly authorised senior officer, to be available to respond forthwith for duty outside of the employee’s ordinary hours or shift”.

18     It is accepted that the Claimant was not rostered on call.

19     The evidence before me is that, for the purpose of the definition of “on-call”, Superintendent Neville would have been the relevant duly authorised senior officer until his retirement and then his replacement until the Delta Program reforms when the District Superintendents took over the responsibilities for all officers within their respective districts.

20     The issue in this case is whether or not Superintendent Neville directed the Claimant to be on call and, if so, did that direction continue to include the periods of the claims and could it be in the contemplation of the parties to the industrial agreements that an officer could be on call for a period of up to seven years as is being claimed in this case.

21     The definition of “on-call” goes on to provide that “(A)n 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”.

22     I have heard evidence of the circumstances of when officers are placed on call and the expectation of them when they are and also the consequences that might follow should an officer not be available when called.

23     Superintendent Napier gave evidence that it was usual to place officers on call for a specific operational requirement and he gave as an example a known “bikie” run through his district.  He went on to say that when he placed officers on call he always ensured they were paid an on-call allowance.  He would expect them to be literally available twenty-four hours a day and went on to say when asked if he had ever placed an officer on call on a long term or permanent basis:

No.  Because of my requirement for people to be available 24/7 that would be just a fairly Draconian imposition on a person’s personal life.  They need to live, they need to have a family life and they need to be doing other things than policing.  They need some relaxation and rest as well. . . . In fact, I would say it would be contrary to good occupational safety and health.

    (See transcript page 122)

24     While the Claimant made himself available to fulfil his role as a scenes of crime officer he did, as would be expected, engage in activities which would result in him not being available to the on-call standard.  He gave evidence of his involvement with karate and hockey.  He is married with two children and would have the normal commitments which accompany that status.

25     It is clear from the evidence that during the periods of the claims no-one in the police service, in particular his immediate “supervisors” at the Mandurah police station or the relevant District Superintendent, who would have been the “duly authorised senior officer” who could direct the Claimant to be on call, considered the Claimant to be on call or entitled to any on-call allowance.

26     The suggestion that an officer could legitimately be on call and entitled to an on-call allowance without the knowledge of anyone in authority in the Police Service is, in my view, untenable.

27     I accept that the Claimant made himself generally available within his police district but I find that was because of his own conscientiousness and that was the expectation of the forensic division and fellow scenes of crime officers.  Scenes of crime officers have a unique skill and play an important role in crime detection and I suspect they are proud of the role they play.

28     With the production of the available “Advice of shifts, overtime, on call, close call and stand-by allowances” records it was established that the Claimant was paid overtime, on average, no more than twice a month and it was his evidence that he was paid overtime each time he was called out, although it is accepted there were times when officers would telephone him or attend at his home for advice.  That is not consistent with the Claimant’s evidence that he was “regularly called out after hours”.

29     The industrial agreements at clauses 17 in AG 274 of 1996 and 18 in AG 129 of 1998 provide that there will be times when an officer will be required to work reasonable overtime and such officer “shall work overtime in accordance with such requirement”.  The agreements envisage that the overtime may be as part of a regular arrangement following on from an eight hour shift or in circumstances where an officer is required to return to work outside his or her rostered hours of duty.

30     As I have said I accept that the Claimant made himself generally available to provide forensic support to his colleagues within his district and the service he provided was above and beyond that which was compensated for financially although each time he was called out he was paid overtime.  I would be surprised if there were not many officers in the police service who out of dedication to duty provided policing on the cheap because of government budgetary constraints.  However these are claims to be decided on proof according to law and I cannot come to any conclusions according to equity, good conscience or the substantial merits of the case.

31     The Claimant has the burden of proof to satisfy me on the balance of probabilities that the Respondents have contravened or failed to comply with the relevant industrial agreements and that he is entitled to be paid an on-call allowance for the periods claimed.

32     I am not satisfied that the Claimant was “directed” by Superintendent Neville to be available to respond forthwith for duty outside of his ordinary working hours.  Similarly I am not satisfied that he was directed to remain contactable by telephone or paging system for an identifiable situation as envisaged by the on-call clauses.  Nor did he give the Claimant any indication that he was directing him to be on call as provided for in the agreements.  In fact, Superintendent Neville admitted he was aware that there was no on-call allowance payable in the circumstances that the Claimant was in because “the hierarchy of the Police Department wouldn’t accept the fact that it was a necessary expenditure . . . (for budgetary reasons)” (See transcript page 13).  As the duly authorised senior officer Superintendent Neville consciously did not authorise the Claimant to be on call for the purpose of the on-call allowance clauses.

33     Even in the event I found that Superintendent Neville had directed the Claimant to be on call, it could not have been the intention of the parties to the agreements that an officer could be placed on call indefinitely.  To suggest that any such direction would continue to be valid long after the authorised officer had retired and, further, continued without the knowledge of those in authority in relation to an officer is without merit, particularly when there is a corresponding obligation on the officer, involving the likelihood of disciplinary action, should he not remain continuously contactable.

34     For these reasons I find that the Claimant has not satisfied me to the required standard that the Respondents are in breach of the agreements.

35     The claims will be dismissed

WG Tarr

Industrial Magistrate