WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2018 WAIRC 00679

DELIVERED : Thursday, 2 August 2018

FILE NO. : M 137 OF 2016

CLAIMANT

AND

Mr. Christopher Dawson, Commissioner of Police, Western Australia Police

Respondent

CatchWords : Alleged contravention of clause 17(12) of the Western Australia Police Industrial Agreement 2009 – Refusal to pay forensic qualification allowance – Whether application for payment of forensic qualification allowance considered in accordance with terms of the clause and forensic guidelines – Whether the Industrial Magistrates Court has power to order resumption of, or review the decision to not grant the application for, payment of the forensic qualification allowance – Whether the Industrial Magistrates Court can order payment of the forensic qualification allowance

Legislation : Industrial Relations Act 1979 (WA)
Industrial Magistrates Court (General Jurisdiction) Regulations 2005

Instrument: : Western Australia Police Industrial Agreement 2009
Western Australia Police Industrial Agreement 2011
Western Australia Police Industrial Agreement 2014
Public Service and Government Officers General Agreement 2014

Case(s) referred to

in reasons : City of Wanneroo v Australian Municipal, Administrative, Clerical Services Union [2006] FCA 813

Director General, Department of Education v United Voice WA [2013] WASCA 287

Re Harrison; Ex parte Hames [2015] WASC 247

Kucks v CSR Limited (1996) 66 IR 182

Vincent v Department of Finance [2016] WAIRC 00035

Result : Claim is dismissed

Representation:

Claimant : Mr A. Crocker instructed by Tindall Gask Bentley Lawyers

Respondent : Ms D. M. Underwood instructed by the State Solicitors Office

REASONS FOR DECISION

1         On 23 September 2016, Michael Pearce lodged a claim pursuant to s 83 of the Industrial Relations Act 1979 (WA) (Act) claiming the Commissioner of Police, in ceasing to pay a Forensic Qualification Allowance (FQA) upon Mr Pearce’s transfer to the Crime Forensic Investigations Office (CFIO), contravened cl 17(12) of the Western Australia Police Industrial Agreement 2009 (Agreement).

2         In his revised claim lodged on 1 September 2017, Mr Pearce says not only did the Commissioner fail to meet his obligations under cl 17(12) of the Agreement, but he failed to act reasonably in his assessment of Mr Pearce’s claim for the FQA.

3         Mr Pearce seeks orders that the Commissioner:

• immediately resume payment of the FQA;
• pay outstanding FQA from April 2015 to date; and
• interest on the outstanding amount.

4         The Commissioner says Mr Pearce is not eligible for the FQA as he does not meet the requirements of cl 17(12) of the Agreement because the position of District Forensic Investigation Officer (DFIO) is not in an approved business area and there is no mandatory requirement for a forensic qualification.  Further, the Commissioner says the application of the FQA and associated guidelines were applied consistently to Mr Pearce.

5         The Commissioner also submits the orders sought by Mr Pearce are not orders capable of being made by the Industrial Magistrates Court (IMC) under s 83 of the Act.

Preliminary or Jurisdictional Issues

6         The Commissioner raised a jurisdictional issue: whether the IMC, as part of the claim, can order the Commissioner to pay the FQA to Mr Pearce?  A further issue arises associated with the jurisdictional issue: the proper construction of cl 17(12) of the Agreement.

Background facts not in dispute

7         Mr Pearce is a police officer with the current rank of senior constable.  From 17 October 2005 to 13 August 2006 he was a Forensic Investigation Officer (FIO) at the rank of constable based in the Central Metro District Forensic Investigation Office.  From 14 August 2006 to 19 April 2015 he was a FIO at the rank of constable based in the Forensic Field Operations (FFO) in the Forensic Division.

8         The Agreement was registered on 20 December 2006.  The registration of the Agreement introduced the FQA at cl 17(12).

9         On or about 5 December 2011 Mr Pearce applied for the FQA, which was recommended for approval by the Commissioner’s delegate effective from 15 August 2010.

10      The position held by Mr Pearce at the time of the application and its recommendation for approval was FIO with position description (PD) 1005.  This position had been deemed eligible to receive the FQA the subject of cl 17(12) of the Agreement.

11      From 15 August 2010 to 19 April 2015 Mr Pearce received the FQA.  In March 2015 Mr Pearce was informed his tenure as a FIO at FFO would not be extended, he had exceeded tenure and he was informed he must transfer to another position within the WA Police.

12      The Commissioner’s decision to transfer Mr Pearce, and the WA Police’s tenure policy, is not the subject of the claim.

13      On 20 April 2015 Mr Pearce commenced as a DFIO with PD 1400 at the rank of constable within CFIO.  Mr Pearce ceased receiving the FQA upon his transfer to CFIO.

14      On 7 July 2015 Mr Pearce submitted a grievance, in part, contesting the cessation of the FQA.  Relevantly, Mr Pearce’s grievance also requested a review of PD 1400 and for PD 1400 to be changed to PD 1005.  Mr Pearce’s grievance went through the chain of command and on 21 December 2015 the then Commissioner, Dr Karl O’Callaghan, advised him his grievance was not upheld.

15      On 9 June 2016 the CFIO, including officers with PD 1400, moved to the WA Police Forensic Division.

16      On 8 November 2017 PD 1400 and PD 1005 were updated and registered.

Parties’ Contentions

17      Mr Pearce’s contentions are:

1. the Commissioner has breached cl 17(12) of the Agreement in denying the FQA payment to Mr Pearce since 2015;
2. up until November 2017, the PDs for PD 1005 and PD 1400 are almost identical in terms of the essential requirement for diploma education, but further to that the two positions undertake the same work;
3. the true test of whether cl 17(12) of the Agreement is not to look at the words of the PDs, but to look at what in reality is happening in relation to the work undertaken; and
4. under guidelines published by the Commissioner, Mr Pearce is entitled to the continuity of the FQA when he transferred to CFIO.

18      The Commissioner’s contentions are:

1. the Commissioner complied with cl 17(12) of the Agreement;
2. Mr Pearce initiated the grievance procedure and the Commissioner did not uphold his grievance as it related to review of PD 1400 and payment of the FQA;
3. the proper construction of cl 17(12) of the Agreement means there is no substantive right to be granted the FQA, but a procedural right for an employee to be assessed, a determination made, which are discretionary decisions exercised by the Commissioner;
4. the Commissioner considered Mr Pearce’s application for the FQA on its merits and he is not eligible; and
5. the IMC does not have jurisdiction to consider the underlying merits of Mr Pearce’s eligibility for payment of the FQA, but is only able to determine whether the Commissioner has done what is required of him under cl 17(12) of the Agreement.

Issues for Determination

19      Having regard to the claim and response to the claim, the principle issues for determination are:

1. what is the proper construction of cl 17(12) of the Agreement?;
2. what orders can be made by the IMC s 83 of the Act?; and
3. what is the character of Mr Pearce’s claim and is the IMC empowered to make the orders sought?

Principles of Agreement Construction

20      The Commissioner in his written submissions sets out the legal principles of constructing an agreement or instrument.  Mr Pearce raised no issue with these principles and I set them out below.

21      In City of Wanneroo v Australian Municipal, Administrative, Clerical Services Union [2006] FCA 813 his Honour French J (as he then was) said:

53. The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument….

57. It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities – City of Wanneroo v Holmes (1989) 30 IR 362 at 378–379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned – see eg George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503–504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):

Awards, whether made by consent or otherwise, should be make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.

22      In Kucks v CSR Limited (1996) 66 IR 182 Madgwick J set out the legal principles applicable to the interpretation of industrial instruments. He said at page 184:

Legal Principles

It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framers(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as arbitral body does, what might fairly be put into an award. So, for example, ordinary or well- understood words are in general to be accorded their ordinary or usual meaning.

23      In Director General, Department of Education v United Voice WA [2013] WASCA 287 Buss JA cited the above comments in Kucks which was also adopted by his Honour Justice Beech in Re Harrison; Ex parte Hames [2015] WASC 247.

24      The general principles applicable in the construction of an industrial agreement were summarised by Beech J in Hames at [50] to [51] as follows:

1. the primary duty of the court in construing an instrument is to endeavour to discover the intention of the parties as embodied in the words they have used in the instrument;
2. it is objectively ascertained intention of the parties, as it is expressed in the instrument, that matters; not the parties’ subjective intentions.  The meaning of the terms of an instrument is to be determined by what a reasonable person               would have understood the terms to mean;
3. the objectively ascertained purpose and objective of the transaction that is the subject of a commercial instrument may be taken into account in construing that instrument.  This may invite attention to the genesis of the transaction, its background and context;
4. the apparent purpose or object of the relevant transaction can be inferred from  the express and implied terms of the instrument, and from any admissible evidence of surrounding circumstances;
5. an instrument should be construed so as to avoid it making commercial  nonsense or giving rise to commercial inconvenience.  However, it must be borne in mind that business common sense may be a topic on which minds may differ; and
6. an instrument should be construed as a whole.  A construction that make the various part of an instrument harmonious is preferable.  If possible, each part of an instrument should be construed so as to have the same operation.

25      Further, at [51] and [53]:

1. the starting point of the task of construction is the text;
2. the industrial character and purpose of an industrial agreement is part of the context in which it is to be construed; and
3. that there is a need to avoid a narrow or pedantic approach to construction does not detract from the fact that construction is a text-based activity.

What is the proper construction of clause 17(12) of the Agreement?

26      The FQA was introduced in 2006.  The FQA is a means of retaining staff in roles that require mandated qualification requirements and acts as an incentive for police officers to obtain certain qualifications and as a means of succession planning for specialist forensic disciplines1.

27      Clause 17(12) of the Agreement provides:

(a)                Subject to the employer’s approval, an employee who has:

(i)                 successfully completed a qualification at Diploma level or above which is a  mandatory requirement for the employee’s position; and

(ii)               prepared or delivered expert evidence used by the courts; and

(iii)             four years continuous experience in the forensic field;

will receive payment of 10% of the base salary rate of the employee’s substantive rank.

(b)                An employee must be working in the field in which the employer has assessed them to be eligible for the forensic qualifications allowance to receive payment of the allowance.

(c)                Sole discretion regarding determination and assessment for eligibility of forensic qualifications allowance remains with the employer.

28      Mr Pearce contends that the proper construction of cl 17(12) is that an applicant who meets the criteria in subclause 12(a)(i), (ii) and (iii) is eligible for the FQA.

29      Thereafter the only barrier to an applicant receiving the FQA is the field in which the applicant works as provided in subclause 12(b).  Mr Pearce contends that provided the applicant is working in a forensic field (as opposed to say traffic or general duties) then an applicant should receive the FQA.  Further, Mr Pearce submits that if an employee in a particular position satisfies cl 17(12), the employer cannot avoid cl 17(12) by words used in a PD or by deeming certain PDs outside the scope of the clause and regard is to be had to what the employee actually does in the position rather than what the PD describes their role to be.

30      However, conversely Mr Pearce says the content of PD 1005 and PD 1400 are not only instructive but are determinative for the purposes of subclause 12(a)(i) and subclause 12(b).  Meaning, if a PD provides for a qualification at diploma level or above as an essential requirement of the position, then that of itself is sufficient to meet the requirement of subclause 12(a)(i) and subclause 12(b) and by extension the Commissioner is required to pay the FQA.

31      To the extent that cl 12(c) has work to do, that work is limited to the Commissioner exercising his discretion in approving the criteria in cl 12(a) and does not apply as an over-arching discretion to cl 17(12).

32      The Commissioner contends that cl 17(12) is subject to the Commissioner’s approval, both in respect of the criteria for eligibility and the field of work and, further, the Commissioner has the sole discretion with respect to assessment and determination of eligibility.

33      The Commissioner says cl 17(12) provides no right to the FQA, but provides a procedural eligibility to apply for the FQA.  An applicant must meet all the criteria in subclauses 12(a) and (b), but the Commissioner retains sole discretion with respect to the field of work and the qualification/experience.

34      The Commissioner says Mr Pearce’s construction of cl 17(12) should be rejected because it fails to properly consider the importance of the Commissioner’s sole discretion regarding the determination and assessment for eligibility of the FQA or that the FQA is subject to his approval.

35      Further, when read with s 83 of the Act, the IMC cannot order reinstatement or payment of the FQA because the IMC would then be standing in the shoes of the person tasked with the sole discretion in assessing and determining eligibility.  At best, the only order that is capable of being made is for the Commissioner to exercise his discretion in accordance with the terms of the Agreement.

36      At least in part the Commissioner’s construction of cl 17(12) is preferred.  In my view, the language and text of cl 17(12) of the Agreement, when read with the whole of cl 17, demonstrates there is no right to the FQA irrespective of whether the applicant meets the criteria of subclause 12(a) and works in a forensic field or area.

37      Clause 17 of the Agreement provides for additional allowances to be paid to employees in certain areas of work or in certain circumstances.  The payment of some allowances is made as a matter of course without the Commissioner’s approval or any other discretionary decision making.  For example: cl 17(14) – Internal Affairs Investigators Allowance; cl 17(15) – Tactical Response Group Allowance; cl 17(10) – Boot Allowance.  Other payments of allowances are discretionary.  For example: cl 17(6) – Subsidised Housing and cl 17(7) – Locality Allowance.

38      Clause 17(12) is not an allowance paid as a matter of course, unlike the allowances paid in clauses 17(14) and (15) to employees attached to the Internal Affairs Unit and Tactical Response Group.  That is, merely working in forensics or carrying out forensic duties, whatever or wherever they might be, or having certain forensic qualifications, skill or experience does not entitle an employee to payment of the FQA.

39      Clause 17(12) provides a staged approach for eligibility for the FQA.

40      First, to be eligible for the FQA the applicant is to have the requisite education, experience in the forensic field and skill: subclause 12(a)(i) to (iii).  Even if the applicant fulfils the criteria, the payment of 10% of the base salary rate is subject to the Commissioner’s approval (or delegated approval as the case may be).

41      Second, the applicant must be working in ‘the field in which the Commissioner has assessed them to be eligible to receive the FQA’: subclause 12(b).  Field is not defined in subclause 12(b), thus alternatives are, arguably, open to the Commissioner, but the field in which the Commissioner has assessed them to be eligible may not be confined to a forensic field (by way of example, Forensic Division).

42      An employee may have the requisite education, experience and skill, but be working in a field or area that does not require the employee to use any or all of the criteria to carry out their primary duties, (for example, a police officer working in traffic may incidentally collect forensic evidence or have the skill and education to know what forensic evidence to collect or a police prosecutor may prosecute a charge requiring the presentation of forensic evidence).

43      Alternatively, an employee may have the requisite education, experience and skill and may work in a forensic area or field, but the Commissioner has assessed the forensic area or field as ineligible for the FQA.

44      Alternatively, an employee may have the requisite education, experience and skill and not work in a forensic area or field, but the Commissioner has assessed the area or field as eligible for the FQA.

45      Third, consistent with subclause 12(c), these are all decisions within the sole discretion of the Commissioner.

46      Consistent with Senior Sergeant Wells’ explanation, the FQA is open to employees who demonstrate the requisite education, experience and skill, but only in those fields or areas the Commissioner has assessed as eligible to receive the FQA.  Further, the FQA provides incentives to employees to obtain higher qualifications, skill and experience related to forensics and recognises the value of ensuring future officers have an opportunity to undertake work in the forensic area (wherever that might be).

47      When understood in this way, four things are apparent: (1) notwithstanding an employee may meet the criteria in subclause 12(a), they may not receive the FQA; (2) the Commissioner may indirectly benefit from the employee fulfilling the criteria in subclause 12(a) but not pay or be required to pay the FQA; (3) only those fields assessed as eligible to receive the FQA will receive the payment; and (4) these are matters for the Commissioner.

What orders can be made under section 83 of the Act?

48      Mr Pearce’s claim is made pursuant to s 83 of the Act.  Mr Pearce has not expressly sought to enforce cl 17(12) of the Agreement, but seeks orders requiring immediate resumption of the FQA and for the Commissioner to pay him the FQA from April 2015 to date (or alternatively to pay the FQA from April 2015 to November 2017 when PD 1400 was formally adopted) (with interest).

49      Section 83 of the Act provides:

(1)        Subject to this Act, where a person contravenes or fails to comply with a provision of an instrument to which this section applies any of the following may apply in the prescribed manner to an industrial magistrate’s court for the enforcement of the provision —

1. the Registrar or a deputy registrar;
2. an industrial inspector;
3. in the case of an award or industrial agreement, any organisation or association named as a party to it;
4. in the case of an award, industrial agreement or order, an employer bound by it;
5. any person on his or her own behalf who is a party to the instrument or to whom it applies;
6. if an employee under an employer‑employee agreement is a represented person, a representative acting on his or her behalf.

(2)        In this section —

instrument to which this section applies means —

(a)        an award; and

(b)        an industrial agreement; and

(c)         an employer‑employee agreement; and

(d)        an order made by the Commission, other than an order made under section 23A, 32, 44(6) or 66.

(3)        An application for the enforcement of an instrument to which this section applies shall not be made otherwise than under subsection (1).

(4)        On the hearing of an application under subsection (1) the industrial magistrate’s court may, by order —

(a)                if the contravention or failure to comply is proved —

(i)      issue a caution; or

(ii)      impose such penalty as the industrial magistrate’s court thinks just but not exceeding $2 000 in the case of an employer, organisation or association and $500 in any other case;

or

(b)                dismiss the application.

(5)        If a contravention or failure to comply with a provision of an instrument to which this section applies is proved against a person as mentioned in subsection (4) the industrial magistrate’s court may, in addition to imposing a penalty under that subsection, make an order against the person for the purpose of preventing any further contravention or failure to comply with the provision.

(6)        An order under subsection (5) —

(a)                may be made subject to any terms and conditions the court thinks appropriate; and

(b)                may be revoked at any time.

(7)        An interim order may be made under subsection (5) pending final determination of an application under subsection (1).

(8)        A person shall comply with an order made against him or her under subsection (5).

Penalty: $5 000 and a daily penalty of $500.

50      Mr Peace has standing to bring the claim as the Agreement is an instrument to which s 83 of the Act applies.

51      The IMC powers on the hearing the claim are set out in sections 83(4), (5) and (6) of the Act.

52      The Commissioner refers to the IMC decision Vincent v Department of Finance [2016] WAIRC 00035 and says that the powers in sections 83(4) and (5) of the Act do not extend to the making of orders of the type Mr Pearce seeks.

53      Mr Pearce says Vincent is distinguished from the facts in his case, principally because cl 22 of the Public Service and Government Officers General Agreement 2014 is predicated on a discretionary arrangement between the employer and employee to take purchase leave, whereas cl 17(12) of the Agreement is directive where the employee meets the requirements of subclauses 12(a) and (b).

54      In my view, s 83 of the Act does not enable the IMC to order the Commissioner to ‘immediately resume payment of the FQA’.  Section 83(4) of the Act empowers the IMC, if a contravention or failure to comply with Agreement is proved, to issue a caution or impose a penalty or dismiss the application.  The relief provided by s 83(5) of the Act is injunctive in nature and is aimed at preventing further specific contraventions of the application instrument.

55      Similar to that in Vincent, the Agreement is an industrial instrument having statutory force.  The IMC’s powers in enforcing statutory rights afforded by industrial instruments are limited to those provided by s 83 of the Act, which does not give the IMC power to substitute its own decision for the decision made by the Commissioner, either in relation to the Commissioner’s approval of an applicant’s education, experience and skill for the purposes of payment of the FQA, or the field in which the Commissioner has assessed an applicant as eligible for the FQA or determination and assessment of eligibility more broadly.

56      The IMC is limited to determining whether the Commissioner has done that required of him by cl 17(12) of the Agreement.

57      This then leads to the question of the character of Mr Pearce’s claim which is relevant to the order sought by him for the Commissioner to pay him the FQA from April 2015 to date (or alternatively to November 2017).

What is Mr Pearce’s claim about?

58      It is apparent that much of Mr Pearce’s evidence concerns the merits of his application for the FQA2.  His affidavit sets out his WA Police service history of employment (including service history in forensics), his qualifications, his roles and responsibilities as a FIO and DFIO.

59      In addition, Mr Pearce relies upon the affidavit evidence of Deborah Amelia Freegard and Craig Markham.  Ms Freegard explains the similarity between her positions as a DFIO at West Metropolitan District Forensic Investigation Office to DFIO at West Kimberley District Forensic Investigation Office.  Notably Ms Freegard states the primary function of a Metropolitan District Forensic Investigation Office is to investigate volume crime and the primary difference between FIO and DFIO roles is that one attends major crime scenes and one primarily attends volume crime scenes3.

60      However, if forensic capacity is exceeded those DFIOs with relevant experience can be tasked to attend major crime scenes which is commonly referred to as ‘surge’ capacity4.  Senior Sergeant Wells, Officer in Charge of FFO, explains ‘surge’ capacity as the exhaustion of human resources at FFO and the activation of DFIOs to take up tasking roles within their skill set5.

61      Ms Freegard also explains the similarities between DFIO and FIO, albeit she acknowledges the FIO role requires a higher level of knowledge of processing crime scenes and use of additional equipment and supplies6.

62      Noticeably absent from Ms Freegard’s evidence is whether she was paid the FQA while a DFIO at West Metropolitan District Forensic Investigation Office.  In February 2018, she transferred to West Kimberley District Forensic Investigation Office as a DFIO (where she was also located from 2011 to 2013).

63      I note that regional WA DFIOs (PD 1419) are experienced forensic officers isolated by distance and required to work independently when attending to a variety of crime scenes7.  PD 1419 is a position eligible for the FQA (as it relates to the forensic qualification requirement)8 and it is reasonably inferred the isolation and the requirement to work independently on a variety of crime scenes is a significant difference in the determination of eligibility for the FQA between PD 1419 and PD 1400 (metropolitan DFIO).

64      Mr Markham makes similar comments to Ms Freegard and Mr Wells in relation to the similarity between the FFO and DFIO roles9.  I note he also states that FFO attend Category A crime scenes and on ‘rare’ occasions he is called upon to assist in resource allocation when at ‘surge’ capacity.

65      One of the areas of dispute raised by Mr Pearce is that the position he now occupies as a DFIO at CFIO is indistinguishable from the position he previously occupied as a FIO at FFO.  That is, Mr Pearce says, notwithstanding his transfer in April 2015, he is undertaking substantially the same work at CFIO as he was at FFO and his qualifications and experience have not changed between the two positions.

66      As I understand it, the real gravamen of Mr Pearce’s claim is that his transfer from PD 1005 to PD 1400 is a difference without distinction and the Commissioner is receiving the benefit of his qualifications, experience and skills without paying the FQA for him to undertake substantially the same work.

Organisation of the WA Police Forensic Area

67      The Forensic Division of the WA Police is overseen by a Divisional Detective Superintendent.  Leaving aside the administrative support and forensic science consultancy, there are three subdivisions under the direction of the Superintendent, each overseen by an Inspector:  Analysis and Regional Coordination, Technology Crime Services and FFO10.

68      Technology Crime Services (digital evidence, cybercrime, technology crime, etc.) is a stand-alone forensic division and is not relevant for the purposes of this claim.

69      Analysis and Regional Coordination includes the subdivisions of: Forensic Training Unit, Forensic Imaging Unit, Forensic Photography Processing Unit, Forensic Fingerprint Bureau, Volume Crime Desk and Major Case Team11.

70      The Major Case Team subdivision includes four or five FIO positions at the rank of constable with PD 1005.  Four additional FIO positions are ‘out posted’ to Homicide Squad, Cold Case Squad and Serious Crime Squad.

71      FFO includes the subdivisions of: CFIO, Forensic Investigator (Science) and a broad category of FIOs (which include bomb scene/disaster victim identification, blood pattern analysis, physical evidence/ballistics/surveying)12.

72      Senior Sergeant Alexander Wells describes three major disciplines: fingerprint identification, crime scene investigation (CSI) and firearms investigation of which CSI and firearms investigation are within FFO13.

73      Notably, save for the 40 constable FIO positions with PD 1005, the other positions within the broad category of FIOs are Sergeant positions14.  As a generalisation, the broad category of FIOs are considered forensic sub discipline specific services headed by a Sergeant with constables working in the area15.

74      Within the CFIO subdivision there are three constable DFIO positions with PD 140016.

75      From 14 August 2006 to 19 April 2015 Mr Pearce was a FIO at the rank of constable within the broad category of FIOs with PD 1005.

76      From 20 April 2015 Mr Pearce is a DFIO at the rank of constable within CFIO with PD 1400.

CFIO vs FFO

77      Since 2015 CFIO is within the Forensic Division of WA Police.

78      There are six CSI teams within FFO with the constables in each team holding the position of FIO with PD 1005.  These teams, including the constables, are required, and be trained, to attend Category A to D crimes17.

79      According to Senior Sergeant Wells the CFIO provide forensic services for volume crime and selected crime offences, including forensic response to clandestine drug laboratories.  The constables with PD 1400 are required, and trained, to attend Category C to D crimes18.  Mr Pearce disputes this saying that in his role as a DFIO requires him to deal primarily with Serious Crimes, or what I infer to be Category C crimes rather than Volume Crime or what I infer to be Category D crimes19.  I note Mr Pearce provided a spreadsheet of completed work and I will refer to that.

80      Mr Markham states that as OIC of metropolitan DFIO he will be called upon to assist with resource allocation for Category B and C crimes and on rare occasions Category A crimes20.

81      Mr Pearce also refers to the review of CFIO conducted by Sergeant Tubman in 2017 in support of his assessment of the crimes attended by a DFIO21.  Sergeant Tubman’s review of CFIO was limited to the facilities, practices and procedures adopted by that office and it is apparent that he was attempting to bring CFIO practices into line with FFO, particularly in relation to exhibit and case management.  It says little, if anything, about the roles and qualifications of the officers working in the area.

82      Mr Pearce referred to the position description documents for PD 1005 and PD 1400 asserting that they contained the same essential work-related requirements relevant to a commitment to the forensic division training regime, inclusive of achieving the Diploma of Public Safety (Forensic Investigation) within four years22.  I note PD 1400 has since been revised as of November 2017 removing the essential work-related educational requirement23.

83      Mr Pearce places significant emphasis on the similar essential work-related educational requirements of PD 1005 and PD 1400 as demonstrative of him meeting the criteria in subclause 12(a)(i).  That is, prior to November 2017, because PD 1005 and PD 1400 both contained the same or very similar essential work related educational requirements, this satisfies the mandatory requirement for his position in PD 1400.

84      The Commissioner’s response to this is two-fold:

1. the position descriptions within the Forensic Division were reviewed by Senior Sergeant Wells and he re-drafted PD 1005 in consultation with the WA Police Employee Relations Branch to mandate a study requirement and level of qualification24.  The revised PD 1005 was formally adopted in November 2017.

While there was some confusion in Senior Sergeant Wells’ oral evidence, it was apparent, when clarified, that his understanding of the situation was once he re-drafted PD 1005 in 2014, the revised version was adopted by Employee Relations immediately or shortly thereafter.  However, this was not the case and the revised version was adopted from November 2017.  It was not until the date of the hearing that he appreciated the delay from his re-drafting PD 1005 to its adoption.  It was further apparent that his understanding of the different mandatory and non-mandatory work-related educational requirements between PD 1005 and PD 1400 was based on his re-drafting PD 1005 consistent with the Australian New Zealand Police Advisory Agency Education and Training Guidelines for Forensic Investigation 201425.

Seen in this context, it is understandable why Senior Sergeant Wells understood and maintained in his evidence that PD 1400 did not include a mandated study requirement and why he advised Acting Superintendent Roberts in an email sent on or around 28 July 2015 that PD 1400 was not a specialist PD and did not have any mandated qualification requirement26; and

2. Employee Relations maintains a document entitled ‘Approved positions with a mandatory forensic qualification requirement’27.  The first version of this document is dated 2 May 201428.  The second version of this document is dated 1 April 201529.

According to Helen Mashiah, Workforce Consultant at the WA Police, the approved positions document was compiled via a number of sources and details those positions which have been approved as having the mandatory forensic qualification requirement (consistent with subclause 12(a)(i))30.  It is apparent this requirement changes from time to time depending on the creation or abolition of new positions, indicating the mandatory qualification requirement is fluid rather than stagnate31.

3. In her oral evidence Ms Mashiah clarified that she has no direct involvement in determining what positions are subject to the mandatory forensic qualification requirement, but relies upon advice provided by the Forensic Division.  Further, Ms Mashiah confirmed that the approved positions document may contain PDs that have yet to be updated, therefore there may be an in congruency between the approved positions document and a PD where the PD has not yet been updated.  She referred to end of page 5 of ‘HJM2’ where the Director Human Resources approved the use of the list in lieu of updated PDs being completed.

85      Ms Mashiah’s and Senior Sergeant Well’s evidence is consistent with an email sent by Ms Mashiah to Mr Pearce on 5 August 2014 where she informed him of a review being undertaken with the Forensic Division of all PDs and that this may impact on eligibility for the FQA32.  Further, she stated the PDs had yet to be finalised, but it was ascertained PD 1005 and PD 1419 (DFIO for regional WA) require a mandatory forensic requirement, but PD 1400 did not.  That is, consistent with Senior Sergeant Well’s evidence that he re-drafted PD 1005 in 2014 to include a mandatory forensic qualification requirement, the same requirement was not required in PD 1400, and the first version of the approved position list document contained PD 1400, but the second (and later) version of the approved position list document did not.

What, if anything, is the difference between PD 1400 and PD 1005?

86      Mr Pearce submits that, in relation to subclause 12(a)(i), greater weight should be given to the essential work-related requirement of PD 1400 and little if any relevance can be attributed to the list of approved positions with a mandatory qualification requirement.

87      I am unable to accept that submission.  While the PD 1005 and PD 1400 have in their respective PD documents the same or at least very similar essential work-related requirement of commitment to forensic division training and achieving the Diploma of Public Safety within four years, it is apparent from the other content, roles and responsibilities of the positions are different.

88      Further, the evidence demonstrates that in 2014 the positions were under review, information which was conveyed to Mr Pearce in August 2014.

89      The PDs do no more than inform an employee of the roles and responsibilities of a position and indicate criteria of suitability for the position.  In relation to cl 17(12) of the Agreement, the PD forms no part of the clause and no reference is made to any position as eligible for the FQA.  In that sense, as stated in cl 17(12), it is a matter for the Commissioner to determine eligibility for payment of the FQA.

90      However, when regard is had to the PDs for PD 1005 and PD 1400 and the evidence, it is apparent there are differences between the two roles, both in form and in substance:

• the role of the work unit and investigation and forensic response between PD 1005 and PD 1400 contained in the PDs is different;
• Ms Freegard states her primary role as a DFIO is responding to volume crime scenes and undertaking an investigation33.  She provides assistance to FFO with major crime attendances if they are unavailable or on an ad hoc basis34.  The differences between FIO and DFIO includes FFO attends primarily to major crime and DFIO attends to volume crime.  The major difference depends on the seriousness of the crime35;
• Mr Markham states major crime is classified as homicide and sex offences.  By way of example, serious crime is classified as attempted murder, wounding offences, armed robberies, large drug investigations and aggravated burglaries.  By way of example, volume crime is classified as frequent offences including assaults, stealing, car theft, burglaries and robberies36.  DFIO role is primarily to provide forensic response to volume crime scenes37.  On a weekly basis, approximately, FFO operations manager will call upon him to assist with category B and C incidents and on rare occasions Category A incidents38.  He is aware that Mr Pearce’s role is working with Category B and C incidents39.  In respect of this last assertion I will comment further in relation to the spreadsheet compiled by Mr Pearce;
• Senior Sergeant Wells states officers occupying PD 1005 are mandated to investigate Category A, B, C and D crimes as required (that is, all levels of crime including volume crime)40.  Surge capacity happens infrequently and officers are tasked to undertake basic roles and not higher level roles41.  Officers occupying PD 1400 investigate principally Category C and D crimes;
• the spreadsheet compiled by Mr Pearce shows work undertaken from May 2014 to May 201642.  From May 2014 to May 2015 Mr Pearce completed Category A crimes (homicide) while he was employed as a FIO in FFO.  After his transfer to DFIO on 20 April 2015, save for May 2015, he has not completed any Category A crimes.  Further, he has not completed any Category B crimes since December 2014 (contrary to Mr Markham’s evidence that Mr Pearce’s role is working with Category B and C incidents)43.  According to Mr Pearce’s spreadsheet he mainly completes one type of Category C crime, being manufacturing a prohibited drug, and Category D crimes, which for Category D crimes has been reasonably consistent from May 2014 to May 2016.  This is consistent with Senior Sergeant Wells’ evidence in respect of the role of the DFIOs with PD 1400.

91      It is not the IMC’s function in this claim to review the difference between the work carried out by a FFO (PD 1005) and compare it to the work carried out by a DFIO or Mr Pearce in his role as a DFIO (PD 1400) and comment on the merits of whether PD 1400 or Mr Pearce as a DFIO ought to be eligible for the FQA.  Additionally, the claim is not a vehicle for review of PDs and commentary on whether a position within forensics should be classed as eligible for the FQA along with other positions.

92      For this reason, it is not open to the IMC to order the Commissioner to assess PD 1400 as a position eligible for the FQA.  Subclause 17(12)(b) of the Agreement provides that it is for the Commissioner to assess the field as eligible for the FQA.  In this instance the Commissioner has assessed the field, being DFIO with PD 1400, as ineligible for payment of the FQA and it is not open to the IMC to assess the merits of this decision.

93      However, when regard is had to the evidence there is a distinction between the role under PD 1005 and the role under PD 1400 in the forensic area such that it is open to the Commissioner to assess and view each role differently.

Can the IMC order the Commissioner to exercise his discretion in favour of Mr Pearce?

94      Section 83 of the Act does not enable the IMC to order the Commissioner to exercise his discretion to regarding determination and assessment for eligibility of the FQA in favour of Mr Pearce.

95      Section 83 of the Act merely enables the IMC to make orders where the Commissioner is found to have contravened cl 17(12) of the Agreement.  The onus of proving the contravention is on Mr Pearce and he must prove the contravention on the balance of probabilities.

96      While I accept that until the revised PDs were formally adopted in November 2017 both PD 1005 and PD 1400 contained very similar essential forensic qualifications, it is apparent from the surrounding evidence that from approximately May 2014 it was no longer considered mandatory for PD 1400 to hold the same essential forensic qualification as PD 1005 and this information was conveyed to Mr Pearce in August 2014.

97      It is not open to the IMC to review the merits of the Commissioner’s decision to include a mandatory forensic qualification for PD 1005 and not PD 1400.  This is entirely a matter for the Commissioner.

98      However, given the explanation provided by Senior Sergeant Wells and Superintendent Hatch, which is in part supported by the evidence of Ms Freegard and Mr Markham, there is a difference between the complexity of work undertaken by a FIO and a metropolitan DFIO. True enough the work may overlap from time to time and work processes between the two roles may be the same.  This is hardly surprising considering Sergeant Tubman’s review recommended similar and consistent work processes in FFO and CFIO.

99      Further, as previously stated, the evidence demonstrates that in May 2014 the forensic qualification essential requirement in PD 1400 was not a mandatory requirement for the position consistent with the PDs being reviewed and updated and Mr Pearce was informed of this in August 2014.  The revised PD 1400 was not formally adopted until November 2017 but, in my view, little turns on this, because the Commissioner identified since at least May 2014 those positions which were subject to mandatory forensic qualifications.

100   This may mean there are employees occupying positions within the WA Police whose qualifications exceed the role and the Commissioner may indirectly receive the benefit of this.  Again, this is not a matter for the IMC.

101   For the purposes of this claim, Mr Pearce has not demonstrated to the requisite standard that a qualification at diploma level was a mandatory requirement for a metropolitan DFIO with PD 1400 for the period April 2015 to November 2017.  The fact that he personally holds that qualification is not to the point.

102   The Commissioner assessed the metropolitan DFIO as ineligible to receive the FQA.  True enough a metropolitan DFIO may work in the broader forensic area, but for reasons already stated it is not sufficient for Mr Pearce to say working in the forensics field or area, of itself, meets the requirement of subclause 12(b).  If that were the case, then it was open for the cl 17(12) of the Agreement to provide the FQA to any employee working in the forensic area in the same way as an employee in Internal Affairs Unit or the Tactical Response Group.

103   While Mr Pearce may attend majority Category C crimes in addition to Category D crimes, it is apparent from his evidence that he does not attend Category A and B crimes, and, in particular, the attendance at Category A crimes is a significant distinction in respect of PD 1005 and its eligibility for the FQA.

104   The Commissioner determined that PD 1400 was not within a field in which he assessed the role to be eligible for the FQA, notwithstanding the role is within the forensic area.

105   Again the Commissioner’s retains the discretion of assessment for eligibility of the FQA.

FQA – Guidelines of Acceptable Practice

106   The FQA Guidelines44 updated in March 2015 outlines the process for applications for the FQA.  Four business areas are identified where if an applicant holds a position in one of five specialised forensic fields he or she is eligible to apply [my emphasis] for the FQA (the five areas being firearms investigations, crime scene investigation, fingerprint analysis, blood pattern analysis and technology crime)45.

107   One of the business areas is CFIO, but the five specialised forensic fields does not incorporate a DFIO position and Crime Scene Investigation is within FFO and the positions occupied are referrable to a FIO (PD 1005) (amongst others)46.

108   Mr Pearce says that he should continue to be eligible for the FQA because he has transferred to, or within, an approved business area and it is a mandatory requirement for PD 1400 to hold a forensic qualification in the PD47.

109   There are four reasons why Mr Pearce is not eligible for continuance of the FQA under the Guidelines:

1. employees continue to receive the FQA while they remain in the position they held at the time they were assessed to be eligible, thereafter if transferred to another position they may no longer be eligible.  Mr Pearce was assessed as eligible for payment of the FQA while a FIO in FFO, but when he transferred to CFIO as a DFIO in April 2015 (PD 1400) he was no longer eligible to for payment of the FQA;
2. the eligibility to apply for payment of the FQA is not limited to the employee’s approved business area but also includes positions that specialise in one or more identified forensic fields, as set out on page 179;
3. for reasons already stated as at May 2014 and April 2015 PD 1400 did not have a mandatory forensic qualification requirement and Mr Pearce was aware of this in August 2014; and
4. Mr Pearce submitted a grievance in which he detailed, amongst other things, why he considered he was eligible for the FQA.  The grievance was processed through the chain of command to the Commissioner, and he did not uphold the grievance48.

110   Therefore, Mr Pearce is not entitled to continuance of payment of the FQA under the FQA Guidelines and submitted a request for the payment of the FQA to continue, broadly speaking, on the basis that he merits continued payment in the DFIO position.  This request was denied.

111   For all of the reasons, and notwithstanding Mr Pearce’s qualification, experience and skill, there was nothing manifestly unreasonable in the Commissioner’s assessment and determination of Mr Pearce’s eligibility for payment of the FQA.

Conclusion

112   Mr Pearce was transferred from FFO to CFIO according to the WA Police’s tenure policy.  The WA Police tenure policy is not under review in this claim.  He was clearly upset by this.

113   The resultant effect is the position Mr Pearce transferred to was not a position in the field in which the Commissioner assessed to be eligible for payment of the FQA.

114   This was the case even though Mr Pearce had a relevant forensic qualification, but not for a position which had been assessed as not requiring the forensic qualification as a mandatory requirement for the position.

115   Mr Pearce requested reconsideration of payment of the FQA, which was assessed as part of the grievance process and the grievance was not upheld.

116   It is not for the IMC, pursuant to an application under s 83 of the Act, to consider the merits of the different PDs within the WA Police or whether it would grant Mr Pearce’s application for payment of the FQA.

117   The Commissioner has not contravened cl 17(12) of the Agreement in ceasing to pay the FQA to Mr Pearce upon his transfer as a FIO in FFO to a DFIO in CFIO.  The IMC cannot interfere with the Commissioner’s decision provided the factors considered were rationally and logically linked to the determination and assessment for eligibility of the FQA.  There is nothing in the evidence which demonstrates the Commissioner considered extraneous material or, to the extent relevant, inconsistently applied cl 17(12) of the Agreement.  To that extent, the Commissioner has acted reasonably in exercising his discretion.

118   For completion, s 83 of the Act does not empower the IMC to order reinstatement or resumption of the FQA.

119   If the Commissioner had failed to exercise his discretion in accordance with cl 17(12) of the Agreement, then at best the IMC could order the Commissioner to exercise his discretion in accordance with the terms of the clause and may impose a penalty under s 83(4)(a) of the Act.  In that sense, s 83A(1) of the Act does not apply because it is not open to find that if the Commissioner had exercised his discretion in accordance with cl 17(12) of the Agreement, Mr Pearce would be entitled to payment of the FQA.

120   Accordingly, Mr Pearce has not made out his claim in which he alleges the Commissioner contravened cl 17(12) of the Agreement and further the IMC does not have the power under s 83 of the Act to make the orders sought by Mr Pearce.

121   The claim is dismissed.

D. SCADDAN

INDUSTRIAL MAGISTRATE