100422073

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT

PARTIES DARRYL RAYMOND KHNG & BRADLEY SCOTT NIND

CLAIMANTS

 -v-

 MINISTER FOR POLICE & BARRY MATTHEWS, COMMISSIONER OF POLICE, WESTERN AUSTRALIAN POLICE SERVICE

RESPONDENTS

CORAM MAGISTRATE G CICCHINI IM

DATE  THURSDAY, 25 MARCH 2004

FILE NO/S M 103 OF 2003, M 104 OF 2003, M 105 OF 2003, M 109 OF 2003, M 110 OF 2003 & M 111 OF 2003

CITATION NO. 2004 WAIRC 11040

_______________________________________________________________________________ 

Representation

Claimants Ms M Fransen of the Western Australian Police Union of Workers appeared as agent.

Respondents Mr R Bathhurst (of Counsel) instructed by The Crown Solicitor for the State of Western Australia.

_______________________________________________________________________________

Reasons for Decision

The Claimants and Respondents

1         Each Claimant is a police officer who has taken an oath to uphold the laws of the State of Western Australia.  Both of them hold the rank of Senior Constable and are specialised forensic investigators.  In that capacity they have the authority to determine the nature of evidence to be gathered relating to a crime or which may be present at a crime scene.  In so doing they have the power to issue specific directions at the crime scene.  They have jurisdiction with respect to procedures and the handling of evidence.  Practically they attend crime scenes, recognise, record and collect physical evidence and ensure that such evidence is preserved.  It is also part of their function to interpret and analyse physical evidence and give evidence in Court as experts in their field.  They are highly trained officers who have completed a significant amount of additional training to enable them to carry out their duties.  They work closely with other investigators and particularly detectives.  They also provide advice to officers within the district within which they work.

2         At the material times each Claimant was stationed at the North West Metropolitan District Scenes of Crime Office.  The office had, for the most part, two physical locations one being the Joondalup Police Station and the other being the Warwick Police Station.  Relatively recently the office’s operations have been conducted solely from the Joondalup Police Complex.

3         The Minister for Police and the Commissioner of Police are respectively the Respondents to these claims.  Each was considered for some portion of the material period to be the employer of the Claimants.  It suffices to say that as a result of determinations made by the Western Australian Industrial Relations Commission and because of subsequent legislative change, the employer of the Claimants changed in late 2000 from the Minister for Police to the Commissioner of Police.  That has given rise to the particular number and form of claims before me.  Having said that, nothing turns on the identity of the Respondents.

The Claims

4         Senior Constable Khng claims that between 30 May 1997 and 30 August 2001 he was underpaid a total of $26,002.59 whilst Senior Constable Nind claims that for the period commencing 20 June 1997 and concluding 18 September 2001 he was underpaid a total of $25,014.67.  Each of them allege breaches of the Western Australia Police Service Enterprise Agreement for Police Act Employees 1996 No AG 279 of 1996 (the 1996 Agreement) and the Western Australia Police Service Enterprise Agreement for Police Act Employees 1998 No AG 129 of 1998 (the 1998 Agreement).  It is alleged in each instance that the Respondents have failed to pay the Claimants an “on-call” allowance for such periods that they were “on-call” during the material periods.

5         The Respondents admit that from 14 January 2000 the Claimants were “on-call” but deny that they were “on-call” for the preceding period.

6         The Claimants seek not only to recover the amounts allegedly underpaid together with interest thereon but also seek the imposition of penalties pursuant to section 83 of the Industrial Relations Act 1979.

The Agreements

7         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.

8         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.

9         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.

10     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.

11     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.

12     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.

13     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.

14     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.

Issue – Onus and Standard of Proof

15     The critical issue to be determined in these matters is whether the Claimants can be said to fall within the “on-call” definition found within the agreements hereinbefore referred to.

16     The Claimants bear the onus of proof in establishing on the balance of probabilities that at all material times they were “on-call” within the definition and they are therefore entitled to the allowances prescribed by the agreements.

Witnesses

17     The Claimants rely on their own testimony and that of their colleague and officer in charge of the North West Metropolitan District Scenes of Crime Office (SOCO), namely Senior Constable Damian John Sheridan, to establish their claims.

18     In resisting the claims the Respondents called David Eacott, the Acting Manager of Workplace Relations for the Western Australia Police Service, Superintendent Alan McCagh, Inspector Geoffrey Maloney and Superintendent Darryl Lockhart.

Evidence – Claimants

Damian John Sheridan

19     Senior Constable Sheridan was at all material times the officer in charge of the North West Metropolitan District SOCO.  He currently remains in charge of that office.  He first arrived at that office on 2 February 1998.  From that time onwards he became the Claimants’ supervisor.  His responsibilities included managing the office and processing all fingerprint identifications in his role as a fingerprint expert.

20     Prior to taking up his position he held a meeting with his predecessor, Senior Constable Lydiate, who explained what the job entailed.  Senior Constable Khng, who was already working within the section, also thereafter assisted him by telling him what he had to do so far as the rosters were concerned.  In that regard it became evident to him that there had to be staff available for after hours call outs in the case of major crime occurrences.  Accordingly “after hours officers” needed to remain contactable by telephone or pager and were required to return to work if the circumstances necessitated it.  There was an expectation that the designated officer be available outside of his normal hours of work.

21     He said that officers were rostered “on-call” on a weekly basis.  The rosters were arranged in such a way that the North West Metropolitan District SOCO usually provided coverage between 7.00 am and 5.00 pm on weekdays.  On occasions the rosters made provision for day coverage on weekends.  Outside those times an officer would remain “on-call” to facilitate twenty-four hour coverage.  The office was, in the main, during the material period divided into two sections.  One based at Joondalup and the other at Warwick.  The complement of officers across both localities usually numbered about three at any given time.  Each officer participated in the roster on a rotational basis amounting to being “on call” once every three weeks.  The rosters were transmitted electronically each fortnight to the Inspectors in Charge of the SOCO.  During the relevant period they were Mr McCagh, Mr Maloney, Mr Coltin and later Mr Watkins.  The rosters were also sent to the Inspector in Charge of the Warwick and Joondalup Police Stations, the Joondalup Divisional Office, the Perth Forensic Branch and the CIB Duty Sergeant.

22     Vehicles were generally provided to “on-call” officers with the expectation that they be taken home so as to enable a ready response to any call out.  Approval had to be formally sought and given for vehicles to be taken home.  That was generally done electronically by “netmail”.  The available vehicle containing specialist equipment facilitated an immediate response.  Initially pager contact was made with the “on-call” officer.  Later the paging system was replaced by the use of mobile telephones.  The home telephone numbers of the “on-call” officers were also disseminated to those within the police service who might require the services of the North West Metropolitan District SOCO and consequently contact would sometimes be made via their home telephones.  Senior Constable Sheridan said that he, as the Officer in Charge, would receive a lot more after hour’s calls than his colleagues.  When responding to such calls he would initially assess the job to see whether it was worthwhile sending someone out to the job.  In most instances the job could be left until the next day.  In some instances, if the job was “too big” or could not be handled solely by the Perth Forensic Branch, then an officer from the North West Metropolitan District SOCO would attend.  In some instances however the Perth Forensic Branch would attend the scene in the North West Metropolitan District area without the involvement or support of the local SOCO.

23     Senior Constable Sheridan testified that in searching through the SOCO records at the Warwick Police Station he found a copy of a memo to Superintendent Lockhart from Acting Detective Inspector Walker dated 24 October 1996 (exhibit 1) which contained the following recommendation:

“I also recommend the concept of the Joondalup Forensic officers servicing the District after hours.  The magnitude of crimes after hours is such that they would only be called out occasionally and this would not impact upon their budget allocation to any great extent.  There are distinct advantages attached to the idea as preparation of court briefs etc, continuity would be achieved at a local level.

Respectfully forwarded for your information and that of the District Officer, Mirrabooka, Officer in Charge Forensic Branch and the Regional Officer, please.”

24     It was Senior Constable Sheridan’s view that the recommendation simply reflected the then current practice of the local SOCO officers working closely with local detectives after hours.  There were certain practical advantages arising from such practice including the retention close at hand of exhibits and other forensic material.  It also enabled easy access to advice and information.  Further, local detectives had greater confidence in the local SOCO officers as compared to their Perth based counterparts.

25     In trawling through the records Senior Constable Sheridan also came across a memo issued by the then Acting Assistant Commissioner, Regional Commander (Metropolitan Region) Mr R. Kucera.  Although the document is dated 24 January 1996 it is common ground that it actually issued in 1997.  The document (exhibit 2), which is an important document in the context of this hearing, stated:

MEMO

TO:                DISTRICT OFFICERS

FROM:          ACTING ASSISTANT COMMISSIONER

                       REGIONAL COMMANDER (METROPOLITAN REGION)

SUBJECT:     Procedures To Be Adopted in Respect To SOCO's

I refer to the District Officers Meeting of January 20, 1997 where the above-mentioned issue was discussed.  Since this meeting I have again met with Inspector Steve Squires in order to clarify some additional points.

The following procedure is now to be adopted by Districts where SOCO's are required:

1. During normal day shift, District SOCO's are to assess crime scenes and determine whether the Forensic Branch is required to attend.  This assessment should be based on the complexity of the scene (eg the requirement for specialist equipment) and whether or not the investigation is likely to be protracted.

2. Outside of normal day shift, the Forensic Branch will attend and deal with all crime scenes until they cease duty (currently 2am).  After this time the on call officer from the Forensic Branch will assess all crime scenes and determine whether it is a matter for the District SOCO or the Forensic Branch.  District SOCO's will be called out where appropriate.

3. The current practice of providing a vehicle to District SOCO's on call is to be applied to all Districts.

4. SOCO's to fax details of officer to be contacted after hours by 1600 hrs, Thursday of each week to Forensic Branch (Fax 222-1385).

26     Senior Constable Sheridan also produced photocopies of rosters for the North West Metropolitan District SOCO for the period 29 July 1996 until 2 September 2001.  It is noted that all of the rosters leading to the week ending 29 October 2000 do not make reference to officers being “on-call”.  In each case the roster contains the following message:

“AFTER HOURS OFFICER; ONE MEMBER IS ROSTERED ON A SEVEN DAY ROTATION.  THE ROTATION COVERS FROM FRIDAY TO FRIDAY UTILISING THE OFFICER ROSTERED TO WORK OVER THE WEEKEND.    WEEK 1;    (contact)    …

WEEK 2;    (contact)    …”

27     The rosters for the periods 30 October 2000 and onwards, made reference to officers being “on-call”.

28     It was Senior Constable Sheridan’s evidence that no one ever queried the form of or the legitimacy of the rosters.  That was despite the fact that he was aware that his superiors looked at rosters closely.  Indeed the fact that the rosters were looked at closely is reflected in the minutes of the meeting of all officers in charge within the District held on 11 March 1999 (see exhibit 4).

29     Senior Constable Sheridan also testified at some length concerning the “Commuting Vehicle Policy” which had been implemented by Superintendent Lockhart with effect from 1 October 1996 (see exhibit 7).  He also testified about the pre-existing vehicle use procedure as is reflected in exhibit 6.  It suffices to say that the new policy indicated that the taking of a police vehicle home is justifiable when the officer is part of a unit subject to regular after hours and/or weekend call out or where the call out is made on the basis of a need to regularly attend emergency situations as part of the officers’ duty statement.  In any event the commuting use of vehicles was always subject to approval by the District Officer.  Any non-compliance with the policy would have inevitably resulted in disciplinary action (see exhibit 11).  The use of such vehicles was, for various reasons, documented and indeed such records were maintained (see exhibits 12 and 13).  Further Senior Constable Sheridan also produced commuting vehicle records reflecting approval of commuting privileges for January, February, April, June and July 2001 (see exhibit 14).

30     Turning to the issue of operating procedures Senior Constable Sheridan testified that on 3 February 1998 he sent a memo to the detectives in his area setting out the standard operating procedures including after hours contact numbers.  That document was passed on to Inspector Maloney who did not take issue with it.  On 14 January 2000 the operating procedures changed at the direction of Inspector Maloney who sent a memo (exhibit 9) to all relevant officers stating the following:

SUBJECT     :     Attendance of SOCO to scenes of major crime.

Due to recently identified problems related to attendance of SOCO officers to scenes of major crime such as homicide, please note the following instruction.

When a scene controller to a major crime, usually a District Detective Sergeant identifies the need for attendance of SOCO officers for scene examination, the Joondalup District SOCO officers shall be called to the scene.  This will ensure timely professional attendance to that crime scene.  After initial examination of the scene and in consultation with the scene controller the attending District SOCO officer shall determine if assistance is required from Crime Support SOCO teams.  Should specialist examination or assistance be required the Scene Controller and/or attending SOCO officer will then make such request through the appropriate channels to the required office.

Forwarded for information, dissemination and compliance, please.

31     It is that memo that gives rise to the Respondents’ concession that from that time onwards the SOCO officers were “on-call”.

32     Senior Constable Sheridan explained that the new operating policy came into effect after certain jobs within the North West Metropolitan District, which had been attended to by the Perth Forensic Branch, had not been carried out to the satisfaction of local police.  Essentially there was a lack of confidence in the Perth Forensic Branch. Consequently on 7 April 2000 Inspector Lockhart published a memo setting out call out procedures (see exhibit 10).

33     Senior Constable Sheridan explained that the issue of “on-call” allowance had been the subject of numerous discussions during the material period culminating in his memo to Inspector Watkins on 27 August 2001 (exhibit 15) in which he said:

In reference to your report the North West Metropolitan Scenes of Crime office (SOCO) has been directed by the North West Metropolitan District office to supply a person to respond to any serious major incidents within the district.  This directive was issued by Inspector MALONEY (refer attached memo) and was specifically targeted for after hour's response availability.

The SOCO office has made an officer and vehicle available to respond to a call out for several years.  This arrangement operates by officers rotating their availability after hours and on weekends.  The person who is rostered to respond is required to take a vehicle to his home address to allow quick and direct attendance at a crime scene.

To date no “on-call” allowance has ever been paid to any of the SOCO officers.

The report from the W.A. Police Union would appear to be directed at situations that are similar to that of the North West Metropolitan Scenes of Crime Office.

Should you require any further clarification in regards to this matter please contact me on 92468369.

Forwarded for your information

34     His memo provoked the following response (see exhibit 16):

Damian this memo overrides any previous instruction that you may have.  Any problem or deviation from it is to be brought to my intention (sic)(attention).  Please ensure that your team are well acquainted with this instruction.

Regards

Inspector Watkins

TO:       All staff North West Metropolitan District

SUBJECT:      SOCO callout procedures

It has come to my attention that our District SOCO team are being called on after hours to attend to all manner of examinations.  To assist in this regard it has become the practise of our SOCO team to roster one of their staff “on-call”.  This practise is to cease immediately.  The costs associated with callouts and standbys prohibit this and are not to occur unless authorised, as discussed below

To obtain SOCO assistance after hours firstly call on the afternoon or night shift Forensic Branch officers through the POC.  If they are unable to attend and the matter is so urgent that it requires IMMEDIATE attention our SOCO officers may be called out by any Sergeant in this District.

Examinations not requiring urgent attention are to be booked through the POC for attention during a normal day-shift (seven days a week).  The local SOCO team dayshift roster is available from your OIC.

35     Senior Constable Sheridan testified about the practical implications of being “on-call” which required him to be able to attend any call out.  That precluded him from drinking alcohol.  He also, necessarily, had to remain within the metropolitan area.  His evidence in that regard found at page 51 of the transcript of proceedings is worthy of repeat:

WITNESS:  If I could just clarify one thing?  I think if we’re actually called at home and it’s actual a very urgent emergency, I think we are obliged to actually go to the actual job.  We can’t do anything about it;  we have to go.  I’ve actually had one call from - - where they called me and I was actually having a dinner with some friends, and they asked us and I said,

“"Sorry, I’ve been drinking.  I’m not available”, and then they tried one of the other officers in the district and he wasn’t available either, and - - I don’t know who went to the actual job, but I haven’t - - haven’t - - I’ve been called once, and I said I wasn’t available.

MS FRANCEN (sic):  And is that something that was different prior to 14th of January 2000?  Was - - did you have capacity to say, “I’m sorry, I’m out with friends.  I’ve been drinking”?---No.  No, you were expected - - if you got a call, you actually were expected to go to the - - the scene, and you were actually given the mobile phone.  You weren’t allowed to drink alcohol.  That was our understanding, we weren’t able? to drink alcohol.  You had to be available, and you had to go to the scene when you were called.

Were you allowed to leave the metropolitan area?---Oh, we didn’t leave the metropolitan area.  I actually went to - - when I - - on that Christmas of 1999 when I actually went to my family, after I worked day shift I went to their place.  I was actually on edge, because I was actually on call for that Christmas evening, and it - - so, no, I wouldn’t leave the actual metropolitan area, no.

And do you know, of - - of yourself or any of your staff members, whether anyone at any stage was not available to return to duty whilst rostered to be the “on-call” officer?---Not that I know of, no.

Not - - not any circumstance?---I - - I don’t believe so, no.  If - - if there is a change where they had to change roster, they advised me and someone else would be actually put in their - - and - - and take over the “on-call”, for whatever reason.  Whether it was a late? sick leave or - - or they had, you know, private matters they wanted to attend to, they would swap with someone.  Someone would always be available.

36     When cross-examined Senior Constable Sheridan informed the Court that he also has made a claim in this Court alleging that he was not paid “on-call” allowance totalling $33,000.00.  He agreed that his circumstances are identical to the Claimants in these matters.  He also conceded that the success of the Claimants in these matters would probably assist his case.

37     When questioned concerning the requirement to perform overtime he conceded that by virtue of the overtime clause in the agreements all officers are expected to work reasonable overtime and would be required to comply with a recall to duty unless there was some very good reason for not doing so.

38     He also conceded that whether an officer is “on-call” could not be left to the officers themselves.  “On-call” had to be authorised.  However he was unaware of the notice published in the Police Gazette in 1989 that set out who could approve “on-call” situations.  He said in that regard that he had no idea whether Superintendent Lockhart, the District Officer, ever saw the rosters that he had sent to the District Office.  He also conceded that he was unaware of Mr Kucera’s memo (exhibit 2) when preparing the rosters.  Indeed it is clear that Senior Constable Sheridan was ignorant of the memo and that it played no part in the rostering arrangement.

39     Senior Constable Sheridan admitted that he was aware that from August or September 1997 the Perth Forensic Branch had officers on duty twenty-four hours per day.  He would not concede however that it meant that prior to 14 January 2000 the Perth Office was the first point of call.  He was aware however that after 14 January 2000 the North West Metropolitan District SOCO officers had, if required, to be available to respond after hours in order to attend local crime scenes.  He conceded however that the officers were not called out after hours all that regularly.  Notwithstanding that, they were nevertheless required to respond to after hour’s enquiries concerning forensic issues.

40     With respect to the “Commuting Vehicle Policy “Senior Constable Sheridan conceded that he did not know whether the police vehicles were supplied in accordance with the criteria set out in the policy.  He simply followed the established practice in that regard.  He rejected the contention that the forensic vehicle was taken home from the Warwick police station on account of lack of security at that station.  He said the cars were taken home so that they could be available for after hours call outs.

41     It was put to Senior Constable Sheridan that there was never any sort of instruction put to him with respect to his after hours activities by any Inspector or Superintendent.  He agreed with that proposition but added that there was an expectation not to drink and not to travel too far.

42     When re-examined Senior Constable Sheridan explained that from time to time the District Officer would query manpower arrangements.

Darryl Raymond Khng

43     Senior Constable Khng has been a police officer since 2 July 1984.  He is currently stationed at the Bunbury SOCO.

44     He told the Court that he commenced working at the Joondalup office of the North West Metropolitan District SOCO in July 1996 and left in 2001.  Whilst there he worked eight hour day shifts commencing at either 7.00 am, 8.00 am or 9.00 am usually Monday to Friday.  However in the latter stages the roster was changed so that weekends were also routinely worked.  When he first commenced his Officer in Charge was Senior Constable Peter Lydiate.  Later Senior Constable Sheridan took over.

45     When he first started Senior Constable Lydiate explained to him the nature of the rotational roster and further explained that it was part of his duties to be “on-call” and attend jobs after hours when required.  He said that he did not query the arrangements and just commenced working under such arrangements.  He did not have any option but to participate in the roster.  However it was never made clear to him where the instruction to work after hours came from.  To facilitate call outs he was initially given a pager that was later replaced by a mobile telephone.  He was also given a “take-home” vehicle equipped with all the necessary equipment to enable him to carry out forensic duties.  He had to sign out the vehicle when “on-call” and thereafter remain contactable.  That curtailed his social and family life.  He did not drink alcohol and remained within the metropolitan area so as to enable a timely response.  He responded when required.  When Senior Constable Sheridan took over nothing changed.

46     On occasions he acted as the Officer in Charge and was required to prepare and submit rosters to those who were on a distribution list, which included the District Office.  He said the purpose in doing that was to inform those who might need the services of the local SOCO to be aware of the name of the person “who was on duty and when”.

47     Whilst “on-call” he was routinely contacted by Shift Sergeants, detectives, crime scenes units and the CIB Duty Sergeant.  He said that the contacts were irregular.  On most occasions he gave advice only.  Furthermore actual call outs were infrequent as reflected in the fact that he attended only ten call outs during the periods of the claims.  When he did attend on call out he was paid at overtime rates.

48     Senior Constable Khng testified that he discussed the issue of not being remunerated for being “on-call” with work colleagues.  He said in that regard that,

“(The )general feeling was that because of the monetary situation, the fact that they couldn’t afford to pay it, we weren’t going to get paid, so there was no point in pursuing it”.

49     However he did not raise the issue with senior officers superior to his immediate supervisor.  He said that there was never any doubt in his mind that he was “on-call” when so rostered.

50     When cross-examined Senior Constable Khng conceded that an officer at fairly junior level could not decide whether or not they were to be “on-call” and that it is a matter for a duly authorised senior officer.  He agreed that he could not put himself “on-call”.   Further and importantly he conceded that prior to 14 January 2000 there had not been a verbal or written direction made to him personally by a District Officer requiring him to be available after hours to respond forthwith for duty.  He also conceded that up to 2000 the rosters did not refer to officers being “on-call”.

51     He also admitted that there were certain practical advantages in the roster referring to an “after hours” officer.  It provided one point of contact whilst the others were free.  He denied however that the rosters were formulated in order to equally apportion overtime to be performed.  Senior Constable Khng conceded also that there were times when he returned to duty when he was not the designated “after hours officer” on the roster.

52     He was also questioned about his knowledge of a policy requiring the Perth Forensic Office to be called out first, after hours, to any crime scene in the North West Metropolitan District.  He said that he was unaware of such a policy but acknowledged that on some occasions the Perth Forensic officers did in fact attend scenes first.  He said that when he had previously worked at the Perth Forensic Branch he had been “on-call” and was paid for such.  Notwithstanding that, he failed to put in claims for “on-call” allowance when working for the North West Metropolitan District even though he knew he could claim such allowance.

53     Senior Constable Khng conceded that an Inspector or a Superintendent did not direct him to be “on-call” and to be in a fit state for a return to duty.  He conceded also that he was never directed not to leave the metropolitan area.  However he said that when “on-call” he was obliged to go to work if required.  He had no discretion in that regard.

54     In answer to a question put to him by the Court, Senior Constable Khng admitted that the officer rostered to be “on-call” was necessarily always the officer who responded however a colleague could deputise if the need arose.

Bradley Scott Nind

55     Senior Constable Nind commenced employment as a police officer on 5 July 1982.  He is currently stationed at the Goldfields Esperance SOCO.  At the material times he was stationed at the North West Metropolitan District SOCO.  He initially worked out of the Joondalup Police Station but later moved to the Warwick Police Station.  He said that he usually worked an eight hour day commencing at either 7.00 am, 8.00 am or 9.00 am.  Although he usually worked weekdays he did on occasions work on weekends.

56     Upon commencement at the North West Metropolitan District SOCO Senior Constable Lydiate advised him that he would be required to carry out “on-call” duties approximately once every three weeks.  That practice continued under Senior Constable Sheridan.  The “on-call” arrangements consisted of being given a pager and later a mobile telephone together with a fully kitted out vehicle for forensic duties.  The vehicle could not be used for private use.  The officers were to make themselves available for contact after hours.  Indeed he was recalled to duty after hours whilst “on-call”.  The practical implication of being “on-call” was that he had to remain contactable twenty-four hours per day.  If an important family function cropped up at those times he had to inform the Officer in Charge so that someone else within his office could attend a call out.  He said that he queried the fact that he was not paid to be “on-call” with several work colleagues including more senior ranking officers such as Sergeants but the consensus of opinion was that any claim for “on-call” allowance would be met with little chance of success given that such claims would be prohibitive.  He said that the Sergeants were sympathetic however they,

“weren’t the ones calling the shots”.  “They couldn’t authorise payment of on-call”.

     (Transcript pages 108 and 109)

57     Senior Constable Nind testified that whilst he was “on-call” he always responded to calls received and was always available to return to duty.  When a vehicle was taken home, records had to be kept of that fact as was required by the District Office.  He on each occasion recorded the fact that he had taken the vehicle for “on-call” purposes.  Those records were open to scrutiny and audit.  He also was required to seek approval to take the vehicle for such purposes.

58     When cross-examined Senior Constable Nind confirmed that he had not spoken to his Superintendent concerning the “on-call” situation.  He agreed that he had only discussed the situation with other SOCO officers and with local Detective Sergeants. Importantly he also conceded that the rosters up to 2000 did not make reference to officers being “on-call”.  Further he agreed that on occasions when he did return to duty he did so notwithstanding that he was not the designated after hours officer.  He also agreed that on occasions the Perth Forensic Branch would be called in to carry out after hour’s investigations.  That, however, changed in 2000 when Inspector Maloney required that the local SOCO officers be called first.

59     Senior Constable Nind agreed that for the period 13 June 1997 until 18 March 1999, for which he claims an amount of $11,604.54 that he was only called out twice.  He agreed that he did not put in a claim for the payment of “on-call” allowance notwithstanding being aware of his entitlement by virtue of his experience whilst working for the Arson Squad when he had been paid an “on-call” allowance.

60     When re-examined Senior Constable Nind said that when on 22 May 1999 he was recalled to duty notwithstanding that Senior Constable Sheridan had been the designated after hours officer for that day. He had performed such overtime as had been authorised by Inspector Maloney or the person acting in his position.

Evidence – Respondents

David Eacott

61     Mr Eacott has been working in the Human Resources and Industrial Relations area since 1 June 1985.  In June 1998 he was appointed Acting Manager of Workplace Relations for the Western Australia Police Service.  He told the Court that he is familiar with the agreements.

62     He was taken to comment about the requirement for officers to return to work outside of their rostered hours.  He said that an officer recalled to work to do overtime could reject the request if the officer is unable to return for some valid reason whereas when an officer is “on-call” rejection at the discretion of the officer is not permitted.

63     When cross-examined he explained that an off duty police officer is not obliged to remain in readiness to return to work unless “on-call”.  Unless an officer is “on-call” he or she cannot be disciplined for failing to return to work.

64     He said that the Officer in Charge is responsible for the creation of rosters and that the District Superintendent would not be responsible for the creation of rosters.

Alan Bruce McCagh

65     Mr McCagh is currently the Divisional Superintendent of the Major Crime Division.  He commenced work as a police officer on 18 September 1978 and at the material time was the Assistant District Officer of the Joondalup District.

66     He explained that the Joondalup District was divided into the North and South regions.  He was the Inspector in Charge of Crime Operations in the Southern half of the District.  He was based at the Warwick Police Station for the eighteen months until July 1998 at which time he moved to the Joondalup Police Station.  At that time he moved out of Crime Operations and his functions shifted to Inspector Maloney.  Inspector Maloney, who already had responsibility for the Joondalup SOCO, also took over responsibility for the Warwick SOCO.  There was a SOCO based at Warwick during the period that he was there.

67     He told the Court that he is aware of the power within the relevant agreements to direct police officers to be “on-call” but he did not, during his period of responsibility, direct the officers working at Warwick to be “on-call”.  He said that he was aware that the SOCO officers within the District gave a seven by sixteen capability.  He was happy to rely on the Perth Forensic Branch, which provided a seven by twenty-four capability to make up any shortfall.  The Perth Forensic Branch would respond to after hours calls.  In the event of the Perth officers not being available then local officers (Warwick) would be used if they were agreeable to being recalled to duty.  If they were not available, Joondalup SOCO would be contacted.  There was a standing arrangement in that regard.  He said that it would be an act of mismanagement to have officers “on-call” in the light of the Perth capabilities.

68     Superintendent McCagh acknowledges having seen the rosters (exhibit 3) but said they did not indicate that anyone was “on-call”.  Had he seen reference to “on-call” he would have corrected the situation.  Reference in the rosters to “after hours officer” meant that someone was being made available to be recalled to duty, but the management of the District did not at any time require the officers to make themselves available.  He said that he never placed any restrictions on the SOCO officers as to what they could do outside their normal hours.  He said if a SOCO officer was contacted outside of normal hours and asked to go back to work and if, for whatever reason, the officer could not, there would not be any disciplinary action considered.

69     He was also asked questions concerning the provision of the police vehicle.  He said in that regard that SOCO officers at Warwick were permitted to take vehicles home because of the fact that it was inconvenient and inefficient to load and unload the vehicles each morning and evening as the case may be in order to facilitate the leaving of the forensic vehicle in relatively insecure circumstances at the Warwick Police Station.  To have left the vehicle loaded up with specialist equipment in the insecure Warwick Police Station was fraught with danger.  For ease of convenience and efficiency the officers were permitted to drive the vehicle home.  Further, by the officer having the vehicle readily available, it permitted a more timely and efficient response in attending crime scenes particularly early morning and late afternoon.

70     When cross-examined Superintendent McCagh said that there was no time when the notion of “on-call” became the subject of contention.  He said that there were not many circumstances when SOCO officers were recalled to duty.  Further he confirmed that the decision to allow the Warwick SOCO officers to use vehicles arose out of him exercising his discretion in view of justifiable needs.  He also went on to say that the use of a pager and mobile telephone was an internal arrangement aimed at efficiency rather than an indicator of the officers being “on-call”.

Geoffrey Michael Maloney

71     Inspector Maloney is the Acting Superintendent of the Communication Division.  He commenced employment with the Western Australia Police Service on 3 April 1978.  Between January 1998 and May 2000 he was an Assistant District Officer at Joondalup.  He initially had responsibility for the SOCO at Joondalup but soon after arrival also assumed responsibility for the Warwick SOCO.

72     He testified that prior to 14 January 2000 he did not direct officers Khng or Nind to be “on-call”.  He said that because of the availability of Perth Forensic officers on a twenty-four by seven basis there was no need for local officers to be “on-call”.  If the Perth officers were not available then the local SOCO officers would be called for which they would be paid overtime.  Prior to 14 January 2000 he had never placed any restrictions on the local SOCO officers concerning what they did outside their normal work hours.  He never told them they could not drink alcohol or could not leave the metropolitan area. 

73     Inspector Maloney acknowledged that he had no involvement in the preparation of the rosters but accepted that he had received copies of the same.  He noted that the rosters designated officers as “after hours or “on-call”” officers.   Inspector Maloney said that “on-call” meant that you are available to serve the public.  He did not attach to that term the technical meaning imported by the agreements.

74     There were occasions when Inspector Maloney called upon his local SOCO officers to perform out of hours duties.  On some of those occasions the officers did not respond to telephone calls or pager calls that he made which necessitated in him having to contact the Perth Forensic Branch for assistance.  He said the officers were not subject to being disciplined for not being available.  It seems that Inspector Maloney’s actions in that regard run contrary to the policy and approach taken by other Inspectors and the Superintendent of his region.

75     Inspector Maloney also testified that he was aware about the SOCO officers taking vehicles home.  He said the Warwick SOCO officers were justified in doing so because of the security concerns about the Warwick Police Station whereas the Joondalup SOCO officers were justified in taking a vehicle home given the huge distances that they necessarily had to travel to perform their duty.  Consequently there was efficiency in having the officers take home the vehicles.

76     He said that on 14 January 2000 he issued an instruction that the local SOCO officers be contacted first.  That resulted from dissatisfaction with the outcome provided by the Perth Forensic Branch.

77     When cross-examined Inspector Maloney disclosed that prior to 14 January 2000, notwithstanding that there was a policy to contact the Perth Forensic Branch first after hours, he nevertheless used to, on a regular basis, contact the local officers.  He further conceded that the reason for providing the SOCO officers with a pager or mobile telephone was so that they could be available at any time.

78     When cross-examined concerning the commuting use of vehicles he said that he took the view that there was a justifiable need to take the vehicles home.  He also said at page 191 of the transcript:

(TO WITNESS):  Well, “Call out”, under the definitions means on call as per the Police Services Award, under the definitions, so that you’re aware before I ask you the question.  Was the vehicle provided to forensic investigators on - - on one of the bases that they are regularly subject to after hours and or weekend actual call outs?---It’s a “Catch 22” situation.  If they’ve got the vehicle, yes, they’d be called out.

79     Inspector Maloney said that he would:

“invariably try and call my people (SOCO officers) first. … Because I know them, and they're a very professional unit”

(Transcript page 193).

80     They also attended in a much timelier manner.

81     Finally Inspector Maloney conceded that his memo of 14 January 2000 did not cause any change in the rostering formulation for SOCO officers.

Darryl Lockhart

82     Inspector Lockhart is currently the Divisional Superintendent responsible for the Police Prosecuting Division.  He has been a police officer since 4 May 1970.  Between 13 August 1996 and 5 November 2000 he was the District Officer at the Joondalup District Office.

83     He told the Court that in 1995 there was a significant restructure of police operations in this State under what became known as the Delta Program.  It redefined and realigned Districts.  New District Officers were appointed.  The District Officers were given considerable autonomy with the District Officers becoming in effect local “chiefs”.

84     He informed the Court that within his District, within which the Claimants worked at the material times, he was the only person who could authorise “on-call” requirements.  He said that at no time did he authorise the SOCO’s within his District to be “on-call”.  There was no need to have them “on-call”.  Indeed they could be recalled to duty if required.  In any event the Perth Forensic Office was able to provide outside of hours forensic assistance.  The Perth office was on a twenty-four hour roster.  Further the need to call such officers outside of hours was infrequent.  He said that he did not at any stage instruct the SOCO officers as to what they could do and could not do outside of rostered hours.

85     Inspector Lockhart testified that the refusal of SOCO officers within his District to go to work when recalled outside of hours did not import any disciplinary consequences.  If they were available they would return.  If they happened not to be available other arrangements would be made.

86     Inspector Lockhart confirmed that he did not prepare the SOCO rosters.  He believed that they maintained a roster.  It was not, however, incumbent upon them to send him a copy of the roster.  He said that he cannot recall seeing the rosters but accepts that the rosters had been sent to his office.  In reference to exhibit 3 he said that the notation “after hours officer” was indicative of an informal arrangement aimed at streamlining social engagements and achieving equity in relation to recalls to duty.  He said that he does not consider being available after hours as being the same as being “on-call”.  In any event he did not direct the officers to be available after hours.

87     He was next taken to consider the “Commuting Vehicle Policy” (exhibit 7).  He said that the policy was implemented to suit particular circumstances.  There was not a strict adherence to it.  He told the Court that he did not specifically authorise the SOCO officers to use the vehicles because they were “on-call”.  He recognised, however, that it was convenient for the officers to have a vehicle in the event of a recall to duty.

88     Inspector Lockhart testified that he was at the meeting which gave rise to Acting Assistant Commissioner Kucera’s memo issued in January 1997 (exhibit 2).  He said the term “on-call” referred to in the meeting did not import the legal interpretation as found in the agreements.  The term “on-call” was loosely framed.

89     He said that prior to 14 January 2000 the Perth Forensic Office was still the first “port of call” after hours.  From January 2000, because of shortfalls in the performance of the Perth office, he agreed to Inspector Maloney’s proposition that there be a change requiring local SOCO officers to be called first.  That gave rise to Inspector Maloney’s memo (exhibit 9), which he authorised.

90     When cross-examined he conceded that he does not have involvement in the preparation of the roster.  He did concede, however, that his office had a part to play in the checking of rosters.  He also acknowledged that there had been ongoing discussion about the performance of the Perth Forensic Office, which ultimately led to change.  He said he would have been surprised if Inspector Maloney had a preference for calling local SOCO officers prior to the change in policy.

91     When questioned about the provision of pagers and telephones Inspector Lockhart said that the same were provided for both on duty and after hours needs.  His view was  that they were provided primarily for on duty use to improve efficiency of performance.

92     Inspector Lockhart rejected the proposition put to him that Inspector Maloney’s instruction of 14 January 2000 changed nothing and was a mere confirmation of the existing policy.

93     When re-examined he reaffirmed that the policy existing prior to 14 January 2000 was to contact the Perth Forensic Office first.  Only if they were not available would consideration be given to calling out local SOCO officers.

94     He said that “on-call” in the context of Mr Kucera’s memo (exhibit 2) meant no more than availability for contact.

Submissions

Respondents

95     The issue to be determined is whether there has been a breach of the relevant agreements by failing to pay the Claimants an “on-call” allowance for the periods in question.  The Respondents concede that the Claimants were “on-call” from January 2000 until 31 August 2001.

96     It is submitted that a police officer is “on-call” within the meaning of the relevant industrial agreements if he or she 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.”

97     In such circumstances an officer must return to work forthwith when called.  An officer may also, pursuant to the same agreements, be recalled to work reasonable overtime.  However if that occurs the officer may if he or she has good reason for doing so decline the invitation to return to work.  Situations which might give rise to that include not being in a fit state by reason of alcohol consumption or other reason.  The Respondents point out that both Claimants have agreed that they were under an obligation to work reasonable overtime.  Accordingly it is submitted that being recalled when “on-call” and being recalled to perform overtime may look identical to an observer.  Mr Bathurst cited the example of two constables, each at home on a Saturday morning watching the cricket, one being “on-call” and the other not.  Both are called up and asked to go back to work.  Both go back to work.  There is no real apparent distinction between the two.  The difference is only highlighted when a police officer is not available.  In the case of an officer not “on-call”, if he or she cannot go back to work for a good reason the outcome is just accepted and a move is made to find someone else.  In the case of an officer who is “on-call”, he or she must go back because he or she is being paid to be available.  A refusal or inability to return to work other than for medical reasons in the latter example would result in disciplinary action being taken.

98     It is submitted that it is up to a police officer’s duly authorised superior and not for the officer him or herself to determine whether he or she is “on-call”.  It is pointed out that each of the Claimants conceded during their testimony that they were not in a position to put themselves “on-call”.  A police officer does not get to pick whether he or she is “on-call” or, alternatively subject to be recalled to do reasonable overtime.  It is suggested that a proper reading of the “on-call” clause in the relevant industrial agreements makes it clear that whether a police officer is rostered or directed to be “on-call” is a matter for the Commissioner of Police or a duly authorised senior officer.

99     With reference to the definition of “on-call” within the agreements it is argued that notwithstanding the placement of the comma after the word “rostered” in that clause that the clause should be read to mean being “rostered or directed by a duly authorised senior officer”.  That is so particularly in the light of subclause (2)(a) of clause 16 of the 1996 Agreement and clause 19 of the 1998 agreement which provide:

(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:

………

100  It is argued that subclause (2) reflects the case to be that there is no entitlement to payment of an “on-call” allowance unless authorised by the Commissioner or a duly authorised senior officer.  It is submitted therefore that on a proper interpretation of the definition of “on-call” the rostering or directing must be by a duly authorised senior officer otherwise there is no entitlement to payment.  Accordingly on a proper reading of subclauses (1) and (2) when considered together it follows that any rostering of “on-call” duties can only be authorised by the Commissioner or a duly authorised senior officer.

101  Further it is also submitted that the placement of the comma after the word “rostered” in the definition of “on-call” in subclause (1) is as a result of poor drafting as is exemplified by the lack of a comma in the definition of “Stand-by” also in subclause (1) which is substantially the same in its terms as that of the “on-call” definition.

102  The Respondents say that for a senior officer to be “duly authorised” to place a police officer “on-call” there must be either a formal written instrument of delegation or, at the very least, a specific oral direction relating to the matter.  In that regard the Court is urged to follow what my brother Mr Brown IM said in Civil Service Association of Western Australia Incorporated v Western Australian Fire Brigade Board No 124 of 1990, an unreported decision of this Court delivered on 21 September 1990.  At pages 9 and 10 he said:

If, as I am satisfied, Mr Sparrow was at no time properly authorised to be on call, there is a fundamental and quite fatal defect in his claim that a breach of this Award has occurred.

I have reached that view because I consider that the use of the words "a duly authorised Senior Officer" in the award contemplates a specific written or oral delegation by the Permanent Head to a Senior Officer to authorise individual officers to hold themselves on call during a period off duty.  The term "duly" has been the subject of judicial consideration and it has consistently been held that the term carries a connotation of formality and compliance with proper procedures.  In the present case, in the absence of authority direct from the Permanent Head the complainant must establish that some other senior person was duly authorised by the Permanent Head.

103  He went on to say at page 11:

There are a multitude of cases where terms such as "due process" and "duly stamped" are used (see Wespac v Mousellis 37 NTR 1 for the latter) and the term "duly" can clearly be taken to require formality and documentation, rather than a generalised approval in oral terms.  When combined with the word "authorised" I am satisfied that the result is that either a formal written instrument of delegation should exist or at the very least a specific oral direction relating to the matter mentioned in an award.  In the absence of either of these matters being addressed in evidence before me, I consider that the no case to answer submission must be upheld.

104  In this matter it is submitted that “duly authorised senior officer” does not mean just any senior officer but one who has received from the Commissioner of Police either a written or specific oral authority to place officers “on-call’.  The Respondents contend that the specific written delegation of the Commissioner is found within exhibit 16.  Accordingly the only person with authority to approve “on-call”, “close-call” and “stand-by” allowances is the relevant Regional Officer, which now means District Officer.  The relevant District Officer at the material times was Superintendent Lockhart.

105  Superintendent Lockhart did not prior to 14 January 2000 authorise any SOCO officer within the North West Metropolitan District to be “on-call”.  The evidence dictates that Senior Constable Lydiate told the Claimants that they would be required to be “on-call” on a rotational basis.  When Senior Constable Sheridan took over he simply continued to roster officers in accordance with that practice, however, there is no evidence before the Court to show how the practice originated and, importantly, whether there had been any direction in that regard from a duly authorised senior officer.

106  In so far as the Claimants rely on paragraph 3 of Mr Kucera’s memo to evidence the authorisation of a duly authorised senior officer it is said that it is not clear what Mr Kucera meant by his statement:

“3. The current practice of providing a vehicle to District SOCO's on call is to be applied to all Districts.”

107  It is submitted that the only person who could tell the Court what the statement means is Mr Kucera and that the Court should draw the inference from the failure to call him that if he was called he would not say anything that would be helpful to the Claimants.  The Respondents suggest that the best evidence of what is meant by that statement comes from Superintendent Lockhart who was at the meeting that gave rise to the making of Mr Kucera’s memo.  It was Superintendent Lockhart’s evidence that Mr Kucera only used the term “on-call” in a colloquial sense.

108  It is further submitted that Mr Kucera’s memo cannot be said to be a direction to the two Claimants to be “on-call”.  It is not addressed to them and indeed they never saw it prior to the document being dug up for the purpose of these proceedings.  The Respondents point out that the memo is inconsistent with the Claimants’ claim in that in paragraph 2 it clearly states that the Perth Forensic Branch would attend all crime scenes until 2.00 am at which time they ceased duty.  The Claimants, however, claim that they were on duty for all the time between the end of their shifts at 3.00 pm, 4.00 pm or 5.00 pm until the next morning.  In any event soon after this memo issued the Perth Forensic Branch changed its capabilities so as to provide a twenty-four hour service.  In summary, the Respondents say that the memo cannot in any way be taken to be a direction or approval by a duly authorised senior officer that the Claimants were “on-call”.

109  In preparing the rosters the officer in charge of the SOCO for the district designated one of their number to be the after hours officer.  A senior constable who, in the scheme of the hierarchy of the police service could not be considered to be a senior officer did that.  It is submitted that the fact that the rosters were sent to the District Office does not mean that they were closely examined.  The mere receipt of the rosters does not give rise to an implicit approval of an officer being “on-call”.  Indeed Inspectors McCagh and Maloney (as they then were) did not consider that the rosters in any way indicated that the SOCO officers were “on-call”.  Superintendent Lockhart had no more that a fleeting awareness of the existence of the rosters.  In any event the rosters themselves did not indicate on their face that officers were “on-call”.  Accordingly, even if the relevant superior officers were aware of the rosters, it is the case that they did not hold any particular significance concerning the “on-call” issue.

110  The evidence of all the superior officers who have testified in this matter indicate that there was no need to place the Claimants “on-call” as forensic support could be obtained from the Forensic Division in Perth.  Indeed from August or September 1997 the Perth Forensic Division was staffed twenty-four hours per day seven days per week.  Prior to that they were available until 2.00 am.  On the infrequent occasions when the Claimants were recalled to duty, they claimed and were paid overtime.

111  It is submitted that there was never any restrictions placed on the Claimants prior to 14 January 2000 with respect to their after hours activity.  Nor were they, during that period, under any obligation to return to work outside of normal duty hours.  They would not have been disciplined if they could not be contacted or otherwise unable to return to duty.  It has also been pointed out that the ability to swap the after hours obligations between themselves is indicative of the informality of the arrangement and the lack of sanction from superiors.

112  Finally the Respondents argue that the fact that the SOCO officers were periodically provided with a commuting vehicle is not demonstrative of the fact that they were “on-call” because the “Commuting Vehicle Policy” was not strictly applied, and in any event, the practice of providing vehicles pre-dated the Claimants’ arrival at the North West Metropolitan District.  Accordingly they, together with Senior Constable Sheridan, did not know the basis for the provision of the vehicles.  Further there is evidence to demonstrate that the vehicles were supplied for security and efficiency reasons rather than because the Claimants were “on-call”.

113  In summary the Respondents say that the claims must fail because there was no direction and no rostering by a duly authorised senior officer.  The fact that they were directed or rostered by a duly authorised senior officer must be strictly proved but which has not been done.

The Claimants

114  It is submitted that the officers at the North West Metropolitan District SOCO were at all material times “on-call”.  Their circumstances at that office did not differ from similar arrangements at other places where the Claimants had previously worked and for which they had received “on-call” allowance.

115  Ms Fransen, for the Claimants, cited a number of authorities including Hon Minister for Police v Western Australian Police Force Union of Workers (1969) 49 WAIG 993, Hon Minister for Police v Western Australian Police Union of Workers (1981) 61 WAIG 1365, The Hospital Employees’ Industrial Union of Workers, WA v The Proprietors, Lee-Downs Nursing Home (1977) 57 WAIG 455, MacPherson v Metropolitan Board of Water Supply and Sewerage (1922) 21 A.R. 53 and Police Union of Workers - Western Australia v Hon Minister for Police (1988) 68 WAIG 260 to give a framework of how the “on-call” provision within the Police Award came into being.

116  The Claimants say in this matter that they were instructed by their officer in charge, whom it was their duty to obey, to participate in an after hours roster arrangement in accordance with a longstanding practice in existence at the office which predated their respective arrival.  It is submitted that it is undeniable that the rosters were “authorised documents”.  Indeed they were sent to authorised officers and a whole range of others who relied upon the rosters to be an accurate reflector of staffing availability week to week.  On occasions the District Office would intervene if the roster reflected inadequate staffing arrangements.  In the circumstances the Claimants maintain that it is ludicrous to say the rosters were unauthorised and that the officers placed themselves “on-call” without authority.

117  Each officers was available when rostered to be “on-call’.  They held themselves in readiness to return to duty.  The Court is asked not to accept that there would not have been disciplinary consequences if the officers did not present for duty whilst “on-call”.

118  Further it is submitted that the provision of a purpose-equipped vehicle after hours, for which specific authorisation was required, is recognition on the part of the Claimants’ superiors that they were “on-call”.  I am asked to reject the contention that permission to drive the vehicles home was granted by reason of security factors.  The Claimants maintain that the provision of a vehicle outside of the “Commuting Vehicle Policy” reflects that vehicles were being provided for “on-call” purposes.

119  Another indicator of the “on-call” status of the officers is reflected in the provision of a pager and later a mobile telephone.  The provision of a pager or mobile telephone required authorisation, at the very least, from the Assistant District Officer.  It is indicative of the fact that the senior officers of the district wanted the after hours SOCO officer to remain contactable.  The fact that the officers were sometimes contacted but did not necessarily go out to a scene did not derogate from the fact that they were “on-call”.

120  The Claimants rely on Inspector Maloney’s evidence that both he and the detectives within the district preferred to work with the local forensic staff as being indicative of the fact that the local SOCO officers were “on-call”.  That is particularly so when one considers that in the light of the provision of a motor vehicle and pager or mobile telephone.

121  The Claimants say that the memo issued by Inspector Maloney on 14 January 2000 does no more than to confirm the practice that already existed, probably flowing from the concerns raised by Inspector Walker in 1996.  That is why there was not any significant change in the work practices, the rosters, or any other aspect of the Claimants’ employment following 14 January 2000.  Further it is pointed out that the fact that the rosters were sent to the Officer in Charge of the Crime Management Unit, The Officer in Charge of Detectives at Joondalup and Warwick, as well as the Tactical Response Group indicates that they were sent to the group with whom the SOCO officers had most to do with and who would potentially be calling upon them.  If reliance were placed on the Perth Forensic Division to provide its services then there would be no need to outline which officer was available after hours.  In that regard the Claimants argue that the memo of 14 January 2000 did not change anything.  It maintained the status quo.  The officers did not know from that memo that they were “on-call” and they were not paid an “on-call” allowance.

122  The Claimants also contend that inferences can be drawn from Mr Kucera’s memo that they were instructed by a duly authorised senior officer to be “on-call.” That is so notwithstanding that it cannot be identified as to how it was that the entrenched practice of being available “on-call” originated.

123  Finally the Claimants submit that it is not for this Court to determine whether the claims are justified measured against the number of instances of recall to duty but rather the Court should have regard to the inconvenience to the Claimants in being “on-call”.

124  In summary the Claimants say that they have met the definition of “on-call” as provided for in the agreements.  Rosters were made available to duly authorised senior officers.  They were aware of the practice which was well entrenched.  The 14 January 2000 memo is significant in that it changes nothing and simply reflects the confirmation of the previous “on-call” situation.

Determination

125  The facts in this matter are in the main not in dispute and I am not called upon to determine issues relating to credit.  Witnesses gave their evidence in a credible fashion and I have no reason to reject any of the testimony given in this matter.  Having said that I recognise that there are differences in recollection or perception on some issues but the resolution of those apparent differences does not assist this Court in determining the outcome of these claims.  I say that because the matters are to be determined based on the construction of the relevant agreements in the light of what is in the main uncontested evidence.

126  The onus rests upon the Claimants to make out their claims.  The Claimants bear the burden of satisfying me on the balance of probabilities that they fit within the “on-call” definition of the agreements, thereby entitling them to the amounts claimed.  Strict proof is required, unlike the situation which prevails in the Western Australian Industrial Relations Commission which enables that jurisdiction to act according to equity, good conscience and the substantial merits of the case without regard for technicalities or legal form (see section 26 of the Industrial Relations Act 1979).  In this jurisdiction the notion of the substantial merits of the case does not apply.  The question in this instance is whether the Claimants strictly fall within the definition of “on-call”. 

127  The relevant agreements define “on-call” to 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.”

128  The comma after the word “rostered” is said to be disjunctive and necessarily leads to a construction that the clause operates simply upon the officer having been rostered to be “on-call”.  Against that the Respondents argue that when the “on-call” definition is read together with the rest of the clause and, in particular subclause (2), that the only possible construction to be made is that the clause applies where the officer is rostered by a duly authorised officer.  Subsection (2) only permits payment of “on-call” allowance to an employee who is authorised by the Commissioner or a duly authorised senior officer.

129  I agree with the construction suggested by the Respondents.  Subclause (2) is instructive.  Furthermore the impreciseness of the drafting is reflected in the inconsistency in the use of the commas in provisions with the same wording.  Both the “on-call” definition and the “Stand-by” definitions contain the same wording yet a comma is used after the word “rostered” in the “on-call” definition whereas it is not in the “Stand-by” definition, notwithstanding that the relevant portion of the definitions deal identically with the circumstances by which an employee can be required to be “on-call” or “on stand-by”.  The impreciseness of the drafting does not change the characteristic of the definitions and the clause as a whole.  I have no doubt that subclause (2) reflects the intention that only those officers who are rostered by a duly authorised senior officer or directed by such to be “on-call” can be regarded as being “on-call”.  The construction of the agreements in that way reflects the pre-existing view concerning who was authorised to approve “on-call” allowances as is reflected in Commissioner Bull’s directive published in the Police Gazette on 18 October 1989 (exhibit 17).  I agree with the Respondent’s submissions on the issue.

130  It follows therefore that the Claimants are required to prove the following:

1. That they were at the material times employees within the meaning of the agreements.
2. That they were rostered or directed by a duly authorised senior officer to respond forthwith for duty outside of the officers’ ordinary working hours or shift.
3. That they remained contactable by telephone or paging system for all the period “on-call” unless working in response to a call or with the consent of their appropriate senior officer.

131  In my view the evidence enables proof of elements one and three.  However, does it permit proof of the second element, which is pivotal in these matters?  In that regard it is no longer in issue that for the period 14 January 2000 until 31 August 2001 the Claimants were “on-call” by virtue of a direction given to them by Inspector Maloney on 14 January 2000.  However, can it be said that during the material period preceding 14 January 2000 they were subject to a roster which was authorised by a duly authorised senior officer or, alternatively subject to direction from such an officer?

132  I accept the Respondent’s argument that for an officer to be duly authorised there must be either a formal written instrument of delegation or, at the very least, a specific oral direction relating to the matter.  In that regard I agree with my brother Mr Brown IM in Civil Service Association of Western Australia Incorporated v Western Australian Fire Brigade Board No 124 of 1990 (supra).  In this case the relevant delegation by the Commissioner of Police provides that only Regional Officers or branch heads may approve who is to be “on-call” (see exhibit 17).  It is apparent that due to restructure that Regional Officers are now District Officers and that the relevant District Officer at Joondalup was Superintendent Lockhart.

133  It is the case that Superintendent Lockhart did not expressly authorise any of the SOCO officers, including the Claimants, to be “on-call” prior to 14 January 2000.  Neither Claimant alleges that Superintendent Lockhart or any of his delegates directed them.

134  It is accepted that Senior Constable Lydiate told the Claimants, on commencement at the North West Metropolitan District SOCO, that they would be required to be “on-call”.  Senior Constable Lydiate was not called to explain where his instructions in that regard came from, or indeed, even if he had any instructions in that regard.  Further I do not have the benefit of his evidence concerning what was meant by “on-call”.  His evidence would have been useful given that the rosters under his hand and subsequently followed by Senior Constable Sheridan make reference to “after hours officers” as opposed to an “on-call” officer.  It would have been useful to determine why such words were used.  I am asked to infer from the established practice, including the alleged authorisation of rosters, that an “on-call” situation existed.

135  The evidence of the Claimants’ superiors namely, Inspector McCagh, Inspector Maloney and Superintendent Lockhart was that there was no need to place the Claimants “on-call” because forensic support would generally be obtained from the Forensic Division in Perth which, from August or September 1997 was staffed twenty-four hours per day seven days a week.  Prior to that the Perth Division was staffed until 2.00 am.  In my view there is support for their contention in that regard as exemplified by the infrequency of the North West Metropolitan District SOCO officers being recalled to duty.  Indeed it rarely happened.

136  It is also the fact that no duly authorised senior officer or delegate ever placed any restrictions on the Claimants’ activities outside of their normal duty hours and, although I accept that the officers did not drink alcohol or leave the metropolitan area when designated as the after hours officer, I find that such occurred not by reason of any directive but rather as a result of a self-imposed restriction to ensure that they were fit and able to return to work when called.  The Claimants point out in that regard that their circumstances were no different to when they worked in other places under similar circumstances and were paid for being “on-call”.  However, their situation in other places is, in my view, immaterial.  I say that because I do not know of the particular circumstances prevailing at those places.  For all I know there may have been a directive given that the officers were to be “on-call”.  If they were, then in those circumstances, the “on-call” payments were appropriately made.  There is absolutely no evidence before me touching on the issue of authorisation to be “on-call” whilst the Claimants worked elsewhere.  Without that evidence, no direct comparison can be made.  In this case the analogy drawn by the Claimants is of little or no use.

137  There is evidence before the Court from Inspectors McCagh and Maloney that there was no obligation resting upon the local SOCO officers to return to work when called outside of their normal duty hours.  In such cases the local SOCO officers would not have been disciplined in the event that they could not be contacted or were otherwise unable to return to duty.  Inspector Maloney testified that he recalled approximately three instances when the local SOCO officers were called but could not be contacted.  They were not, in those circumstances, subject to discipline.  Inspector Maloney’s evidence is suggestive of the fact that the officers were not “on-call”.  I have no reason to reject Inspector Maloney’s evidence in that regard.

138  It is the case that Inspector Maloney and, in particular, the local detectives preferred to use the local SOCO officers.  They obviously worked well together and there was a significant degree of trust and co-operation between them.  In view of that climate the after hours arrangement is just as consistent with altruistic motives on their part as it is with being formally required to be “on-call”.  There can be no doubt that as early as 1996, when Inspector Walker wrote his memo that there was a preference for the use of the local SOCO officers after hours.  However, that ran contrary to formal policy that required the Perth Forensic Division to be called.  The provision of rosters to the local detectives and others within the district is just as consistent with the collegiate approach in being able to help out in an informal sense as it is in being strictly required to be “on-call”.  The fact that the rosters refer to “after hours officers” could be said to be reflective of the fact that the officers were not “on-call” but available to be contacted if the need arose.  Indeed the fact that the officers were able to swap their after hours responsibilities between themselves and determine whether or not to attend a particular crime scene reflects the informal nature of the process.

139  The provision of the rosters to the District Office, of itself, does not import authorisation.  There was an operational need for the District Office to be informed of rostering arrangements within the District.   Clearly the District Office was informed of the rostering arrangements so that manning levels could be monitored.  Whether or not the rostering arrangements were actually monitored to any great degree remains uncertain.  However, what is certain is that none of the relevant rosters reflected the fact that the Claimants were “on-call”.  Indeed the rosters did not state that officers were “on-call”.  The rosters in fact showed them to be “after hours officers”.  The designation of “after hours officers” is just as consistent with being available to return to do overtime if requested as it is with being “on-call”.  Any superior officer viewing the rosters sent to the District Office could not have, just by viewing the same, determined that the officers were “on-call”.  The term “on-call” was never used.  How it can be said, in those circumstances, that the District Officer or his delegates somehow implicitly authorised the local SOCO officers to be “on-call” escapes me.  It would not have occurred to them in such circumstances that the Claimants were “on-call”.  I accept Inspector McCagh’s evidence in that regard.

140  The Claimants say that other indicators such as the provision of mobile telephones, pagers and fully equipped motor vehicles are suggestive of the Claimants being contactable and ready for return to duty.  However, the provision of those items is just as consistent with efficiency and security measures adopted by the District Officer or his delegates.  The use of motor vehicles enabled efficiency in attending jobs early in the morning and late in the afternoon, whilst the provision of mobile telephones and pagers enabled not only contact after hours but also during the course of duty as explained by Superintendent Lockhart.  The evidence of Inspectors McCagh and Maloney is also accepted on such issues.

141  The Claimants say that the memo issued by Inspector Maloney changed nothing.  It did no more than to confirm the existing entrenched arrangement.  With all due respect I cannot see how that argument can be sustained in the light of what the memo says.  It starts off saying:

“Due to recently identified problems related to attendance of SOCO officers to scenes of major crime … “

142  The introduction identifies a recent problem.  From the other evidence before me both from the Claimants and their witness and the Respondents’ witnesses it is reasonable to conclude that the problem referred to was the unsatisfactory performance of the Perth SOCO officers.  The introduction signifies the existence of the then current policy of calling Perth SOCO officers to the North West Metropolitan District/Joondalup scenes of crime.

143  The remainder of the memo instructs a change in procedure whereby the local SOCO officers were to be called.  It is implicit by that memo that the local officers were required to respond when necessary to meet the objective of “timely professional attendance” to the crime scene.  In those circumstances the Claimants were able to claim “on-call” allowance for such periods that they were “on-call” as had been rostered as authorised and directed.

144  The memo, in my view, was seminal to the change that occurred and indeed is, of itself, reflective of change.

145  Finally it is suggested that Mr Kucera’s memo (exhibit 2) is reflective of the fact that the local SOCO officers were “on-call” and that was both recognised and authorised.  In my view the reference to “on-call” within his memo is both equivocal and incapable of establishing that the SOCO officers in the North West Metropolitan /Joondalup District were in fact “on-call”.  Given the evidence of Superintendent Lockhart that each region operated autonomously, the decision as to whether local SOCO officers were to be “on-call” was a decision for the particular District Officer.  Paragraph 2 of Mr Kucera’s memo states inter alia:

“District SOCO's will be called out where appropriate.”

146  That in my view means where rostered or directed by a duly authorised senior officer.

147  In paragraph 3 Mr Kucera said:

“The current practice of providing a vehicle to District SOCO's on call is to be applied to all Districts.”

148  That provision applied only in circumstances where the officers were “on-call”.  The provision of the vehicle for other reasons such as efficiency and security is not inconsistent with Mr Kucera’s directive.

149  In conclusion, it is the case that the Claimants have not been able to identify with any degree of particularity any directive given which led to the entrenched practice of SOCO officers being rostered after hours as was adopted by Senior Constable Lydiate and continued by Senior Constable Sheridan.  The Claimants were not instructed by their District Officer or his delegates to be “on-call”.  Indeed the SOCO officers themselves were not aware of any particular directive in that regard.  They simply followed a practice.  They ask this Court to infer that they were rostered to be “on-call” with the approval of duly authorised senior officers.  However, the evidence, for the reasons given, does not permit such a finding.  Accordingly I find that the Claimants have not proved that they were rostered or directed by a duly authorised senior officer to respond forthwith for duty outside of their ordinary working hours or shift.

150  I find that the claims, insofar as they have not been conceded by the Respondents, have not been established.

G Cicchini

Industrial Magistrate