Chief Commissioner of Police v Kerley [2008] FCAFC 41 (20 March 2008)

INDUSTRIAL LAW – interpretation of certified agreements – entitlement to penalty rates and allowances under Victoria Police Force Certified Agreement 2001 and Victoria Police Force (Police Officers, Protective Services Officers, Police Reservists & Police Recruits) Certified Agreement 1998 incorporating Victoria Police Force Award (No. 1 of 1992) – whether under 1998 Agreement it was a requirement to give notice of places at which you could be readily contacted in order to be entitled to "available for duty allowance" – whether respondents were "rostered or otherwise directed" to stand by available for resumption of duty under the 1998 Agreement – whether respondents were "standing by at home (or other approved place)" within the meaning of the on call allowance provision in the 2001 Agreement – whether the respondents were "authorised" to be "on call" under the 2001 Agreement

WORDS AND PHRASES – "rostered or otherwise directed", "authorised"

Workplace Relations Act 1996 (Cth), s 853

Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 referred to

CHIEF COMMISSIONER OF POLICE v SHAYNE KERLEY
VID 266 OF 2007

CHIEF COMMISSIONER OF POLICE v DAVID BOELL
VID 267 OF 2007

CHIEF COMMISSIONER OF POLICE v LUKE MCLEOD
VID 268 OF 2007

CHIEF COMMISSIONER OF POLICE v TIMOTHY TULLY
VID 269 OF 2007

MOORE, LANDER AND JESSUP JJ
20 MARCH 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 266 OF 2007

ON APPEAL FROM THE MAGISTRATES' COURT OF VICTORIA (INDUSTRIAL DIVISION)

BETWEEN:	CHIEF COMMISSIONER OF POLICE Appellant
AND:	SHAYNE KERLEY Respondent

JUDGES:	MOORE, LANDER AND JESSUP JJ
DATE OF ORDER:	20 MARCH 2008
WHERE MADE:	MELBOURNE

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 267 OF 2007

ON APPEAL FROM THE MAGISTRATES' COURT OF VICTORIA (INDUSTRIAL DIVISION)

BETWEEN:	CHIEF COMMISSIONER OF POLICE Appellant
AND:	DAVID BOELL Respondent

JUDGES:	MOORE, LANDER AND JESSUP JJ
DATE OF ORDER:	20 MARCH 2008
WHERE MADE:	MELBOURNE

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 268 OF 2007

ON APPEAL FROM THE MAGISTRATES' COURT OF VICTORIA (INDUSTRIAL DIVISION)

BETWEEN:	CHIEF COMMISSIONER OF POLICE Appellant
AND:	LUKE MCLEOD Respondent

JUDGES:	MOORE, LANDER AND JESSUP JJ
DATE OF ORDER:	20 MARCH 2008
WHERE MADE:	MELBOURNE

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 269 OF 2007

ON APPEAL FROM THE MAGISTRATES' COURT OF VICTORIA (INDUSTRIAL DIVISION)

BETWEEN:	CHIEF COMMISSIONER OF POLICE Appellant
AND:	TIMOTHY TULLY Respondent

JUDGES:	MOORE, LANDER AND JESSUP JJ
DATE OF ORDER:	20 MARCH 2008
WHERE MADE:	MELBOURNE

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

ON APPEAL FROM THE MAGISTRATES' COURT OF VICTORIA (INDUSTRIAL DIVISION)

BETWEEN:	CHIEF COMMISSIONER OF POLICE Appellant
AND:	SHAYNE KERLEY Respondent

BETWEEN:	CHIEF COMMISSIONER OF POLICE Appellant
AND:	DAVID BOELL Respondent

BETWEEN:	CHIEF COMMISSIONER OF POLICE Appellant
AND:	LUKE MCLEOD Respondent

BETWEEN:	CHIEF COMMISSIONER OF POLICE Appellant
AND:	TIMOTHY TULLY Respondent

JUDGES:	MOORE, LANDER AND JESSUP JJ
DATE:	20 MARCH 2008
PLACE:	MELBOURNE

1 These are appeals under s 853 of the Workplace Relations Act 1996 (Cth) from a judgment of the Magistrates' Court of Victoria (Industrial Division) given on 28 March 2007. They concern the construction of two industrial instruments which governed the employment of members of the Special Operations Group of the Victoria Police (SOG) though the instruments had a wider application in the Victorian Police Force. Specifically, the appeals concern the learned Magistrate's findings about the entitlement of SOG members to various stand by allowances under the Victoria Police Force (Police Officers, Protective Services Officers, Police Reservists & Police Recruits) Certified Agreement 1998 ("the 1998 Agreement") and the Victoria Police Force Certified Agreement 2001 ("the 2001 Agreement"). The 1998 Agreement incorporated the Victoria Police Force Award (No. 1 of 1992) ("the Award").

2 The following is an overview (and slightly simplified) of the factual circumstances in which the proceedings were commenced in the Magistrates' Court. SOG is an elite squad of highly trained specialist police responsible for responding to high risk incidents. The respondents were members of SOG and employees of the appellant, the Commissioner of Police. Normal shifts for SOG members were 8am to 4pm Monday to Friday and 9am to 5pm Saturday and Sunday.

3 For after hours work, officers could be allocated to one of three teams, Alpha, Bravo and Charlie. The membership of the teams would change from day to day in the case of Bravo and Charlie teams and week to week in the case of Alpha team. There were generally four men in each team at any one time. These teams were to be available for emergency call-outs so that at least 12 SOG members would be available to respond to an incident. If less than 12 members were required to respond to a particular incident, members would be called out in sequence. Members of Alpha team were called first, Bravo second and Charlie last. Members of Alpha, Bravo and Charlie teams were required to remain within a 45 km radius of the Melbourne GPO, abstain from drinking alcohol, be immediately contactable and be fit and ready to respond at all times. A list of team members' names and contact details was produced each day from details recorded on a whiteboard.

4 During the relevant period (1 April 1999 to 30 March 2005), the two Agreements applied to the team members' employment. Each prescribed penalty rates or allowances for officers who were available for work after hours. One was an "on call" rate (17% of the hourly base salary rate for a specified senior constable classification) and the other an "availability for duty" allowance (80% of the on call penalty rate). The 1998 Agreement referred to these rates as penalty rates, the 2001 Agreement referred to them as allowances. For convenience, I shall refer to them as allowances. Before the 2001 Agreement commenced, no team members received the on call allowance and only members of certain teams received the available for duty allowance and only during certain periods. After the 2001 Agreement commenced, members of Alpha and Bravo teams were paid the available for duty allowance until 30 June 2003 after which they were paid the on call allowance. The respondents claimed they should have been paid the on call allowance at all times on all teams and the Commissioner counterclaimed that from 1 April 1999 no stand by allowances should have been payable at all (except the available for duty allowance paid to Alpha and Bravo team members between 20 December 2001 and 30 June 2003) and claimed repayment of the allowances paid.

5 As noted earlier, the 1998 Agreement incorporated the terms of the Award (made in 1992). I refer to the incorporated provisions in the 1998 Agreement as if they were set out in full in that agreement. From 1 April 1999 to 19 December 2001, the applicable definitions in the 1998 Agreement concerning the stand by allowances were found in cl 50(1). "On call" was defined in cl 50(1):

8 From 20 December 2001 to 31 March 2005, the applicable definitions regarding the stand by allowances in the 2001 Agreement were found at cl 5.4.2 of the Agreement:

9 Clause 5.4.3.2 created the entitlement to payment where a member is authorised to be on call on a non-rest day:

The hourly rate for the on call allowance was 17% of the base hourly rate for a specified constable classification and for the available for work allowance, 80% of the on call rate.

10 It is necessary only to refer briefly to the proceedings in the Magistrates' Court. First, it is convenient to set out four tables which were attachment A to the learned Magistrate's reasons showing allowances paid, the respondents' claims below, the alleged overpayments and the allowances that the learned Magistrate found should be paid:

	1 April 1999 – 22 Oct 2001	23 Oct 2001 – 19 Dec 2001	20 Dec 2001 – 30 June 2003	1 July 2003 – date of claim
	1998 Agreement		2001 Agreement
Alpha	Availability	Availability	Availability	On call
Bravo		Availability	Availability	On call
Charlie

	1 April 1999 – 22 Oct 2001	23 Oct 2001 – 19 Dec 2001	20 Dec 2001 – 30 June 2003	1 July 2003 – date of claim
	1998 Agreement		2001 Agreement
Alpha	On call	On call	On call
Bravo	On call/avail	On call	On call
Charlie	On call/avail	On call/avail	On call/avail	On call

	1 April 1999 – 22 Oct 2001	23 Oct 2001 – 19 Dec 2001	20 Dec 2001 – 30 June 2003	1 July 2003 – date of claim
	1998 Agreement		2001 Agreement
Alpha	Availability	Availability		On call
Bravo		Availability		On call
Charlie

	1 April 1999 – 22 Oct 2001	23 Oct 2001 – 19 Dec 2001	20 Dec 2001 – 30 June 2003	1 July 2003 – date of claim
	1998 Agreement		2001 Agreement
Alpha	Availability	Availability	On call	On call
Bravo	Availability	Availability	On call	On call
Charlie	Availability	Availability	On call	On call

11 It is unnecessary to set out the reasoning of the learned Magistrate which led to the conclusions reflected in table D. That is because after two days of hearing these appeals (in August 2007) it was apparent that the initiating process in the Magistrates' Court, the pleadings in that Court and, I infer, the submissions made in that Court having regard to the reasons of the learned Magistrate, did not articulate with sufficient precision the common ground between the parties on both questions of fact and law and the legal and factual issues that arose for determination before the learned Magistrate and arise in these appeals which are by way of rehearing. Directions were made by the Full Court for the parties to identify what was in issue what was agreed and, to the extent that we were being invited to make findings of fact, what findings should be made and the evidence which would support them. In the result, the parties jointly prepared a document identifying the legal issues which needed to determined and the common ground between them. Each prepared a document setting out the findings of fact they invited the Full Court to make. It is unnecessary, in these circumstances, to set out the reasoning of the learned Magistrate.

12 One further procedural matter should be mentioned. It was part of the Commissioner's case before the learned Magistrate and part of the case pursued in these appeals, that between 1 April 1999 and the time when the proceedings were commenced in the Magistrates' Court (31 March 2005) various members of SOG were paid stand by allowances when there was no obligation under either the 1998 or the 2001 Agreements, to pay them. The alleged overpayments are summarised in Table C set out earlier. A question arose during the hearing of the appeal about whether the Commissioner would seek to recover any amounts determined to have been overpaid if she was successful in her counterclaim. In the result, the parties agreed that we should determine the question of whether the various members of SOG were entitled to the allowances claimed and defer consideration of the Commissioner's counterclaim. It is now convenient to describe what was in issue and what was common ground.

14 The parties then agreed on 13 questions that may need to be resolved and the evidence and factual findings necessary to answer those questions. In relation to the 1998 Agreement, the first question was:

15 To answer this question, a convenient starting point is the definition of "Available for Duty" in cl 50(1). The definition contains four basic elements. The first is a description of what must be done by an officer to meet what might reasonably be thought to be the essential characteristics of being available for duty. Those essential characteristics are identified in the first sentence of the definition. They are that the officer is standing by in readiness for the resumption of duty within a reasonable time and standing by capable of resuming duty within a reasonable time. Additionally it must be for the resumption of duty when and where required or directed. The second, third and fourth basic elements (in the second, third and fourth sentence respectively) are expressed as provisos. The second sentence contains, in turn, what are also expressed to be two provisos. The first proviso in the second sentence has two sub elements. The first is that a member shall not be required or directed to remain at home. This is to be contrasted with the definition of "On Call", an element of which is expressed to be that the officer is standing by "at home". The second sub element to the first proviso is found in the qualifying words "...but shall be required to be capable of being readily contacted at places of which he gives notice which places may include his home ...". The second proviso in the second sentence is that the officer gives progressive advice the next place at which he can be contacted before he proceeds to that place. The proviso in the third sentence is that the officer might be refused leave to proceed to another "place or environment" if, from there, he would not be readily contactable or could not resume duties within a reasonable time. The proviso in the fourth sentence concerns rostering and is discussed in more detail later.

16 Plainly enough the available for duty allowance payable under cl 52(1) is to compensate for a disability and that disability is that the officer is standing by available for resumption of duty. That is apparent both from cl 52(1) and the first sentence of the definition of "Available for Duty". What, in substance, the first question raises is whether an additional aspect of the disability is a requirement that an officer give notice about where he was and intended to go as contemplated by the qualifying words of the first proviso in the second sentence of that definition. Put slightly differently, the question raises whether a precondition to the entitlement to the disability allowance is that the officer has given notice of the place at which the officer was and would be contactable. In my opinion, the entitlement to the allowance does not depend on the officer having given notice and question 1 should be answered "No" for the following reasons.

17 Firstly, as just noted, cl 52(1) and the first sentence of the definition make it tolerably clear that the disability for which the allowance is payable, is assuming and maintaining a state of sufficient readiness to resume duty if requested and the assumption of an obligation to resume duty when requested. The need for the officer to give notice about where he might be or intend to be from time to time is expressed as an element of one of several provisos which, in substance, creates a mechanism for contact between the officer and a supervising officer who would direct the resumption of duty. It is a mechanism that appears to assume the use of land lines and phone contact using fixed phones at a particular place. It is not immediately apparent from the way the definition is expressed that the provisos are intended to either identify additional elements of the disability or preconditions to the payment of the allowance. The definition does not mandate that the mechanism it identifies for contact is the only way an officer who was standing by to be available for resumption of duty might be contacted. As the facts of this case reveal, other methods involving the use of mobile phones might be used. If other methods of maintaining contact can be used, it is improbable that the giving of notice as an element of one method of contact was intended to be a precondition to the payment of the allowance even though the officer was standing by in readiness to resume duty in a reasonable time and in a state where he was capable of resuming duty.

18 It is true that observations in the reasons given by the Police Service Board in 1981 when it determined, by arbitration, the stand by provisions which ultimately came to be reflected in the Award (and thus the 1998 Agreement) support the contention that the "available for duty" allowance was intended, in part, to compensate an officer for having to adhere to the reporting mechanism now reflected in the provisos to the definition. However, those observations were made in circumstances where there would have been no real prospect of other mechanisms for maintaining contact particularly those involving the use of mobile phones. Ultimately, in construing the 1998 Agreement, the Court is endeavouring to ascertain its "industrial purpose" to use the language of Gleeson CJ and McHugh J in Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10, 222 CLR 241 at [13]. In a context where the 1998 Agreement does not clearly or expressly require adherence to a particular reporting mechanism and where other mechanisms are apt (and in fact used), it would, in my opinion, defeat the industrial purpose of the available for duty allowance to treat the provision providing for an officer to give notice of his actual and intended whereabouts as creating a condition precedent to obtaining the allowance even though the officer experiences the disability to which the allowance is directed, namely standing by ready and capable of resuming duties.

19 The parties agreed that if question 1 was, as I consider it should be, answered "No" then certain things followed. They included that the respondents were each entitled to receive the available for duty allowance whenever on Alpha team from 1 April 1999 to 19 December 2001, and whenever on Bravo team from 23 October 2001 to 19 December 2001 and the question of whether the respondents were entitled to receive the available for duty allowance whenever on Bravo team from 1 April 1999 to 22 October 2001 and whenever on Charlie team from 1 April 1999 to 19 December 2001 would depend on the answer to question 3. I turn to consider that question.

21 The Commissioner submitted that 3.1 raised a question of construction only and that relevant extrinsic evidence was the 1981 reasons of the Police Service Board referred to earlier and evidence of the formalised nature of the Police Force, its chain of command and reliance on detailed procedures such as the Standard Operating Procedures. The essence of the argument was that the words "rostered or otherwise directed" required the form of direction to issue from Command and that a direction be formalised and communicated from Command.

22 However, the reference in cl 52(1) to an officer who "... is rostered or otherwise directed to stand by available for resumption of duty ..." is no more than the identification of any mechanism adopted from time to time by the Commissioner or those in a position of authority within the Police Force which results in particular officers constituting the group of officers who, at any particular time, were standing by ready and capable of resuming duty. It is important to note that in the definitions of both "On Call" and "Available for Duty" there is a reference to the officer being "... rostered or otherwise directed to do so ...". In relation to the latter definition it is the proviso in the fourth sentence. However, of significance, is that the reference in each of these definitions is there for a specific purpose. It is to make clear that an officer is not under a duty or obligation to stand by (either on call or available for duty) unless he has been rostered or otherwise directed to stand by. It appears as a protection for an officer to ensure that the duty or obligation to stand by would only arise if there had been rostering of that officer or a direction to that officer. It is clear, in my opinion, it was not intended to create a precondition to the payment of the disability allowance in circumstances where, by agreement, officers who stand by have done so by entering an arrangement both agreed to and acted upon by supervising officers which identifies those officers on stand by and who may be required to (and would be under a duty to) to resume work when requested. The expression "who is rostered or otherwise directed to stand by ... for resumption of duty" does not, in terms, require any particular degree or measure of formality.

23 That leads to the issue of whether the officers to whom question 3 is directed were, on the facts, "rostered or otherwise directed". The Commissioner submitted that the relevant finding of fact should be that at all times during which the 1998 Agreement operated, when the respondents were on the "whiteboard teams", they were not "rostered or otherwise directed" to stand by available for duty within the meaning of that Agreement. Specifically, they submitted that the Court should find that none of the respondents were at any time directed to stand by available for duty within the meaning of the 1998 Agreement and that none of respondents were at any time subject to any formalised requirement to be standing by that could constitute them having been "rostered or otherwise directed".

24 The evidence generally about what happened, did not appear to be in issue. It was to the following effect. Variations concerning how matters were arranged at various points in time are not presently relevant. Each week, SOG Command placed on a whiteboard, the names of members of Alpha team, without asking those members first. The whiteboard contained headings for the after hours Alpha, Bravo and Charlie teams and spaces for inserting the names of members of those teams. The names of the after hours Alpha team members were invariably those of the day Alpha team members. Each morning, all SOG members would meet and members were asked about filling in the spaces for the after hours Bravo and Charlie teams. Members would nominate themselves for Bravo or Charlie teams. A member would often remain on the same after hours Bravo or Charlie team for a whole week. However, it was also the case that composition of these two teams might change at a weekday morning meeting. On occasions a SOG member would come in before the morning meeting and insert their name on the whiteboard (Bravo and Charlie teams) or substitute their own name for someone else's name. When there were not enough members to fill the Bravo and Charlie teams, SOG members on rest days would be rung at home to see if they were available. Each weekday, the names on the whiteboard were converted into an availability report. The report listed the names of SOG members on the after hours Alpha, Bravo and Charlie teams and their contact numbers. After 22 October 2001, members were only asked to nominate in order to fill Charlie team as Bravo team was being determined before the morning meeting in the same way as occurred for Alpha team.

25 The three main points of difference between the parties are about whether the action of nominating for Bravo and Charlie teams was voluntary, the ramifications of not putting one's name down on the whiteboard and the effect of transcription of the information on the whiteboard into the availability report.

26 The Commissioner conceded that on occasions, SOG members were asked to indicate their availability but contended that being placed on Bravo or Charlie teams was always voluntary and that no SOG officer had ever rostered or directed anyone to go on either team (before 23 October 2001). The Commissioner pointed to the evidence of Superintendent Knight who said the point of the whiteboard system was to establish an order in which members would be contacted to save time ringing around. She also pointed to the Standard Operating Procedures in existence throughout the 1998 Agreement to the effect that membership of Bravo (before 23 October 2001) and Charlie teams was voluntary. The Commissioner pointed to the fact that the four positions on Charlie team were not always filled, the 12 member target therefore not met, and that it was not a condition of appointment to the SOG to be available to be on the whiteboard teams. There was also, the Commissioner submitted, no evidence of anyone being counselled or disciplined for not volunteering to be on a whiteboard team.

27 However, much of the focus of the Commission's submissions was to refute conclusions of the learned Magistrate that the respondents were compelled to make themselves regularly available, would be disciplined by measures designed to reduce their pay should they not do so and that these and other measures amounted to very strong coercion. It is probable that the learned Magistrate overstated the import of the evidence. However, in my opinion, it was unnecessary for the respondents to demonstrate that assuming membership of a team through the process involving the whiteboard, was involuntary. All the 1998 Agreement required was that they were rostered or directed. And, as discussed earlier, that provision was designed to protect the officers and identify the specific circumstances in which they were under a duty or obligation to be on stand by. That occurred by the process of self-nomination on the whiteboard and the translation of what was on the whiteboard into a list of officers who could be called on to return to duty. The evidence establishes that from the time the names on the whiteboard were transcribed on to the availability sheet the identified officers were "rostered or otherwise directed" as that expression appears in cl 50(1) and cl 52(1) of the Award as incorporated in the 1998 Agreement.

28 Accordingly, I would answer question 3, "Yes". An agreed consequence of that answer was that the respondents were entitled to receive the available for duty allowance under the 1998 Agreement whenever they were on Bravo team from 1 April 1999 to 22 October 2001, and when they were on Charlie team from 1 April 1999 to 19 December 2001.

29 This leads to a consideration of the questions concerning the 2001 Agreement. The first was question 4:

30 This question raises for consideration the meaning of the word "place" as it appears in clause 5.4.3.2 when read with clause 5.4.2 of the 2001 Agreement. The Commissioner submitted that the findings of fact which should be made were that the relevant provisions and the word "place" have their origins in the 1981 determination and that the parties did not agree to change the meaning or effect of those provisions when incorporating the Award provisions into the 1998 Agreement. Further, that when the parties made the 2001 Agreement, they did not intend that members in receipt of the available for duty allowance under the 1998 Agreement were to become entitled to the higher on call allowance.

31 The Commissioner pointed to the definition of "at home" in the 1998 Agreement which was:

The Commissioner then noted the substitution in the 2001 Agreement of the underlined words with the formulation "or other approved place". The other evidence referred to in relation to the 2001 Agreement was that of Robert Watson and the Heads of Agreement, the latter of which stated "It is the intention of the parties that the consolidation and modernisation of conditions of employment will not result in an increase in costs".

32 The respondents submitted, in supporting the reasoning of the learned Magistrate, that the word "place" should not be construed narrowly. It was submitted that having regard to the word's defined meaning in the Macquarie Dictionary which includes "a particular portion of space, of definite or indefinite extent", it could comprehend the area of 45 km around the Melbourne GPO. Further, it was submitted, its meaning must be determined having regard to context. I agree but the context suggests, in my opinion, a narrower meaning than that advanced by the respondents. First, the word "place" is part of the expression "or other approved place" which appears in the definition as an alternative to "[the officer's] home" which in turn is defined as the "residence normally occupied by the member". Obviously the notion of "home" comprehends a fixed and ascertained location. Context would suggest that the notion of "approved place" would have similar characteristics. Secondly, the word "place" is qualified by the adjective "approved". This implies prior knowledge by supervising officers of the "place" the member of the team will be at, if and when required to resume duties. That knowledge might well be relevant in determining who would be called upon to attend a particular incident at a known location given that a person who is on call must be able to resume work immediately. The entitlement to the allowance flows from standing by at home or at some other approved place where "place", having regard to its origins in the Award and determination, clearly relates to a specified place rather than an environment. Question 4 should be answered, "No" and the learned Magistrate erred by deciding the contrary.

33 The parties agreed that if question 4 was answered in this way none of the respondents were entitled to receive the on call allowance under the 2001 Agreement irrespective of which team they were on but the available for work allowance (as opposed to the on call allowance) under the 2001 Agreement was payable to respondents whenever they were on Alpha or Bravo teams from 1 July 2003 to 31 March 2005. However, the entitlement to that allowance of respondents who were members of the Charlie team from 20 December 2001 to 31 March 2005 depended upon the answer to question 5.

35 There is little room to doubt, in my opinion, that the word "authorised" in the context of an officer being on stand by, refers to the result of any process within the Police Force where, with the knowledge and approval of a supervising officer, the officer is designated as being on stand by. Accordingly, having regard to the earlier discussion about the "whiteboard system", members of Charlie team were, in the relevant period, authorised to be on call. Question 5 should be answered "Yes". It was an agreed consequence of question 4 being answered "No" and question 5 being answered "Yes" that the respondents were entitled to receive the available for work allowance (as opposed to the on call allowance) under the 2001 Agreement whenever they were on the Charlie team from 20 December 2001 to 31 March 2005.

36 I have answered the questions raised in the appeals. Probably the most convenient course is for the parties to agree on short minutes of order to give effect to these reasons and, in so doing, engage in discussions to resolve, if possible, on an agreed basis how the Commissioner's counterclaims should be resolved. Accordingly, the only formal order that should be made is that the appeal be adjourned to enable the parties to bring in short minutes to give effect to those reasons.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

ON APPEAL FROM THE MAGISTRATES’ COURT OF VICTORIA (INDUSTRIAL DIVISION)

BETWEEN:	CHIEF COMMISSIONER OF POLICE Appellant
AND:	SHAYNE KERLEY Respondent

BETWEEN:	CHIEF COMMISSIONER OF POLICE Appellant
AND:	DAVID BOELL Respondent

BETWEEN:	CHIEF COMMISSIONER OF POLICE Appellant
AND:	LUKE MCLEOD Respondent

BETWEEN:	CHIEF COMMISSIONER OF POLICE Appellant
AND:	TIMOTHY TULLY Respondent

JUDGES:	MOORE, LANDER AND JESSUP JJ
DATE:	20 MARCH 2008
PLACE:	MELBOURNE

37 I agree with the answers which Jessup J has proposed in relation to questions 1 and 2, and the answers which Moore and Jessup JJ have proposed in relation to questions 3, 4 and 5.

38 I also agree that the appeal should be adjourned to enable the parties to bring in short minutes to give effect to the Court’s reasons.

39 Question 1 raises for consideration the construction of cl 52 of the Victoria Police Force (Police Officers, Protective Services Officers, Police Reservists & Police Recruits) Certified Agreement 1998 ("the 1998 Agreement"). A preliminary question arises whether the definition of "available for duty" in cl 50 is relevant to the construction of cl 52. Clause 52(1) speaks both of "available for resumption of duty" and later in the clause remaining "available for duty".

40 It was intended, in my opinion, that the definition of "available for duty" be incorporated in cl 52(1) and the expression "available for resumption of duty" should be read in accordance with the definition, notwithstanding later in cl 52(1) the expression "available for duty" is used. There is an assumption in cl 52(1) that the member is not then on duty. The word "resumption" is used, probably superfluously, to indicate that the member is not presently on duty. Clause 52(2) uses the expression "remains available for duty" and "resumes duty". The use of those expressions shows, in my opinion, that it was intended that the definition of "available for duty" be incorporated in cl 52(1) where a member is not on duty but may be called upon to resume duty. That is also consistent with the reference in the definition to "the member’s next rostered or normal time for resumption of duty".

41 The first sentence of the definition of "available for duty" means that a member must (a) stand by in readiness; (b) and be capable of resumption of duty; (c) within a reasonable time; (d) when and where required or directed. The three obligations imposed upon the member are those in (a), (b) and (c). There is no obligation for the member to be in a particular place but merely that the member be in readiness and capable of resumption of duty within a reasonable time. There is no obligation in the first sentence of cl 50 on the member to give any notice of any kind and in particular notice of a place or places at which the member is capable of being readily contactable. The primary obligation on the member is to be available to resume duty within a reasonable time.

42 If there were no more to the definition it would be right to say that no obligation of the kind posed in the question rests upon the member. However, there are three provisos which, in my opinion, govern the primary obligation.

43 Whether or not a member will be obliged to resume duty is a decision for an authorised officer. That authorised officer can only take steps to cause the member to resume duty if the authorised officer can contact and direct or instruct the member so to do. That, in my opinion, is the purpose of the two provisos in the second sentence.

44 The first part of the proviso in the second sentence prohibits an authorised officer (or any one else) from directing or requiring the member to remain at home. That proviso is clearly intended to distinguish the obligations imposed on a member in the definition of "on call" in cl 50(1). The proviso continues by requiring the member to be "capable of being readily contacted at places of which he gives notice which places may include his home".

45 The proviso imposes a positive obligation on the member to be capable of being readily contacted. The member is not contactable unless the member has given notice of the member’s whereabouts. The obligation to be capable of being readily contacted is necessary to allow the authorised officer to discharge his or her duty to direct the member to resume duty. The intention of the first proviso is to release the member when "available for duty" from the obligation of remaining at home. If the member were at home the member would be capable of being readily contacted. Instead of being obliged to be at home that requirement the member can be at any place (including his home) of which he gives notice. Moreover, the proviso allows the member to move from place to place provided the member gives a progressive advice before the member moves to the next place.

46 The proviso is expressed in mandatory form. The member is "required" to provide the information relating to the member’s whereabouts. If there is no obligation on the member to give any notice at all, then the proviso has no work to do. Moreover, if the obligation imposing the requirement does operate upon the member, and assuming as the first proviso says the member cannot be directed to remain at home, it would mean that the authorised officer could not perform his or her duty to direct the member to resume duty. The authorised officer could not know at any given time where the member was so as to allow the authorised officer to direct the member to resume work.

47 The proviso in the third sentence permits refusal to be given for the member to proceed to a place or environment for which the member has given notice if the member "will not be readily contactable". If there is no obligation on the member to give notice under cl 52 then that proviso will also have no work to do. There will not be an occasion whereby the authorised officer would be in a position to refuse leave to proceed to the particular place or environment.

48 I think the provisos in those sentences should be read as if they were conditions which must be complied with by the member to ensure that the member complies with the member’s obligations in the first sentence and, if read that way, the answer must be as Jessup J has proposed.

49 I agree with Jessup J’s answer to question 2 for the reasons which he has given.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

ON APPEAL FROM THE MAGISTRATES' COURT OF VICTORIA (INDUSTRIAL DIVISION)

BETWEEN:	CHIEF COMMISSIONER OF POLICE Appellant
AND:	SHAYNE KERLEY Respondent

BETWEEN:	CHIEF COMMISSIONER OF POLICE Appellant
AND:	DAVID BOELL Respondent

BETWEEN:	CHIEF COMMISSIONER OF POLICE Appellant
AND:	LUKE MCLEOD Respondent

BETWEEN:	CHIEF COMMISSIONER OF POLICE Appellant
AND:	TIMOTHY TULLY Respondent

JUDGES:	MOORE, LANDER & JESSUP JJ
DATE:	20 MARCH 2008
PLACE:	MELBOURNE

50 I have had the advantage of reading a draft of the reasons prepared by Moore J in this appeal. For reasons which follow, I consider that Question 1 should be answered in the affirmative. This requires me to consider Question 2, the answer to which should be in the negative. Otherwise, I agree with Moore J.

51 The provisions with which this appeal is concerned had their genesis in Determination No 336 of the Police Service Board ("the Board"), made on 19 March 1981. The Board, established under the Police Regulation Act 1958 (Vic), was constituted by a serving Judge of the County Court of Victoria (Judge Vickery) and two members. The determination itself was the outcome of lengthy and detailed proceedings before the Board and was supported by reasons occupying nearly 136 pages. Those reasons demonstrated, if I may so observe with respect, assiduous attention to detail at every level, as did the drafting of the provisions themselves. It is clear from the Board’s reasons that it fully appreciated that the determination which it then made might well require administrative changes in the operation of the Force. I make these observations at this stage to stress that the determination of 1981 was not, as apparently some industrial instruments may be, merely the result of the rudimentary labours of employers and employees themselves. Any suggestion that the provisions should be construed as though they were drawn without the skill of a legal draftsman would be quite unrealistic.

52 The provisions in question were carried, relevantly unchanged, into the first award governing the Victoria Police under the Industrial Relations Act 1979 (Vic), made on 17 July 1992. It has not been suggested that this circumstance had any effect on what would be the proper construction of the provisions in question. It is the provisions of the award of 1992 that were carried into the 1998 agreement, with which Question 1 and 2 are concerned.

54 It seems to me that Question 1 addresses two issues. The first is the issue of the applicability of the definition of the term "available for duty" in cl 50(1) of the award to the operation of cl 52(1) under which an entitlement to the allowance arose. The second – which arises only if the definition did so apply – is an issue of the construction of the definition: did the definition require that the member give notice as therein referred to?

55 It was not submitted on behalf of the respondents that the definition of "available for duty" in cl 50(1) of the award was not to be carried into the relevant entitling provision, cl 52(1). Although the operative provision in cl 52(1) used the term "available for resumption of duty", it is quite clear that the addition of the italicised words was not intended to exclude the defined meaning of the shorter form of the term "available for duty". That form appeared as the heading to cl 52. There can, in my view, be no doubt but that the circumstances with which cl 52(1) was concerned were those defined as "available for duty" in cl 50(1).

56 Most of the argument before us with respect to Question 1 was concerned with what I have identified as the second issue. That issue concerns the operation of the first proviso in the definition. It is an issue of construction. The drafting technique of a proviso was used in a way which has, over the years, been common in industrial instruments. What happens in such cases is that a general statement of entitlement is set out, and then qualifications, conditions or prerequisites are attached to that entitlement. For example, a general provision may entitle an employee to be paid his or her normal wages, notwithstanding absence from work on account of sickness. The relevant provision may then continue: "provided that the employee shall be required to produce a doctor’s certificate upon the first day of his or her return to work after such absence." In that case, the intent of the proviso would be to qualify the entitlement to sick pay by reference to the production of a doctor’s certificate on the day of returning to work. It was, in my view, in this sense that the proviso in the definition of "available for duty" in the award was used. That is to say, it was made a condition of the operation of the definition (and therefore of the entitlement to the allowance) that the member be capable of being readily contacted at places of which he or she gave notice etc. The indispensable nature of such a condition was made clear by the use of the expression "shall be required". This construction of the definition is, I consider, the obvious one as a matter of terminology.

57 It was submitted on behalf of the respondents, however, that the purpose of the proviso was to ensure that members were readily contactable, such that they could resume duty within a reasonable time as contemplated by the opening words of the definition. It was said that the requirement to give notice of places at which the member may be contacted may have been necessary before the advent of mobile communications, but was not essential to the effective operation of the proviso or to the achievement of its purpose in an era when such communications were commonplace. Whatever may have been intended in 1981 when this form of the definition was devised by the Board, those who made the 1998 agreement could not have contemplated an environment in which members required to be available for duty after hours could be contacted only by landline telephone or personal messenger.

58 As I have said, the present issue is one of construction. One starts, therefore, with the intent – objectively ascertained – of the award maker. Here there could not be any doubt. The words are clear. The member was required not merely to be "capable of being readily contacted", but also to be capable of being so contacted "at places of which he gives notice". The construction of the proviso for which the respondents contend would be tantamount to placing a full-stop after the first appearance of the word "contacted" therein. That would, in my opinion, be to make the proviso a substantially different thing from that which appeared in the award.

59 I accept, of course, that the apparent industrial purpose of an award provision should inform the construction thereof. Care must, however, be taken not to perceive a particular industrial purpose in a combination of contemporary circumstances that differs from those obtaining when the words were written. I also consider that, generally, the words used by the award maker should be the starting point for the ascertainment of his or her purpose. Here the purpose of the definition was to identify the operational circumstances which were considered sufficient to warrant the payment of an "available for duty" allowance. The reasons given for making the award by the Board in 1981 reveal that one of those circumstances was the requirement – assumed to be personally inconvenient – that a member give advance notice of his or her intended whereabouts, and thereafter give "progressive advice" of places at which he or she may be contacted. I do not consider that we are in any position to take the view that those inconveniences were of little moment in the mix of industrial facts that led to the setting of the allowance. In other words, there is nothing in what one might now perceive to have been the industrial purpose of the award to justify a departure from the words actually used by the award maker.

60 That brings me to the 1998 agreement. The words of that agreement left no doubt but that the relevant provisions of the award were to be incorporated in terms. The agreement said that each provision of the award "will have effect as a provision of this Agreement as if set out in full herein". We must, therefore, treat the makers of the 1998 agreement as having chosen to adopt a definition of "available for duty" using the very same words as were then set out in the award. Whether or not it might be regarded as curious that they continued to insist upon a proviso which required a member to be capable of being readily contacted at places of which he or she gave notice, that possible curiosity is not, in my view, sufficient to impress upon those words a different meaning from that which they bore in 1981, and from that which they naturally carry, in any era. In other words, although one may pause to wonder whether it was necessary for the parties to have retained a proviso in those terms, there can be no doubt but that they did retain it. And they likewise retained, of course, the allowance which was payable when the terms of the definition were satisfied.

61 For the above reasons, I consider that Question 1 should be answered in the affirmative.

62 Turning to Question 2, the first point to note is that the inclusion of the clause "of which the Respondents gave notice" introduces an additional, and potentially confusing, factual element into a subject which is otherwise, and which was treated by the parties as, purely a matter of construction. The problem is, however, more apparent than real. The appeal (like the proceeding before the Magistrate) was conducted on the assumed footing that the respondents did not give their supervisors actual notice of the fact that, during the period in question, they would be within a 45 km radius from the GPO. Rather, by being on one of the teams referred to in the evidence, the respondents were operationally required to remain within an area marked out by that radius. It is implicit in the parties’ agreement to the articulation of Question 2 in the terms which it has that, if it should be held (as the Magistrate did) that such an area was a "place", then the respondents had given the necessary notice, either actually or constructively.

63 With respect to the constructional aspects of Question 2, one should commence by nothing how the word "places" was used in the definition, and how it was not used. There were two aspects of the "places" to which the definition referred. First, they were places at which the member had to be capable of being readily contacted; and secondly, they were places of which the member had given notice. The definition did not simply require the member to be at a place or places at which he or she could be contacted. If that were the wording of the definition, the present controversy would never have arisen, since, so long as he or she could be readily contacted, wherever the member was from time to time would necessarily constitute a "place". It is the second aspect of the word "places" that has made it important to consider whether an area marked out by a 45 km radius from the GPO comes within the connotation of that word. Once the question is seen in this frame, it is immediately apparent that the answer must be no. Necessarily, the mere fact of ready contactability will not satisfy the terms of this part of the definition. Further, because the words contemplate the member providing his or her supervisor with useful information beyond that of contactability, it is as clear as may be that the word "places" was a reference to the actual whereabouts of the member, and that an indication as broad as that for which the respondents contended could never have been contemplated.

64 I consider that, read fairly and in context, the "places" to which the definition of "available for duty" referred were the immediate whereabouts of the member. There may, perhaps, be room for debate as to whether locations larger than, for example, specific street addresses might fall within the meaning of the term. However, we are required only to rule on the question whether the approximately 6,364 km² around Melbourne, including much of Port Phillip Bay, was within the connotation of "places" in the definition. I do not believe that it was and would, therefore, answer Question 2 in the negative.

65 In accordance with the parties’ agreed summary of issues, it follows from what I have said above that Grounds 1, 2 and 3 in the Notice of Appeal should be upheld. I agree with Moore J that the appeal should be adjourned to allow the parties to bring in short minutes of the orders necessary to give effect to the reasons of the court.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Counsel for the Appellant:	F Parry SC with R Dalton

Solicitor for the Appellant:	Freehills

Counsel for the Respondents:	H Dixon SC with K Farouque

Solicitor for the Respondents:	Maurice Blackburn Cashman

Dates of Hearing:	1 & 2 August and 2 November 2007

Date of Judgment:	20 March 2008

Federal Court of Australia - Full Court

Chief Commissioner of Police v Kerley [2008] FCAFC 41 (20 March 2008)