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Queensland Police Union of Employees v State of Queensland (Queensland Police Service)[2022] QIRC 276

Queensland Police Union of Employees v State of Queensland (Queensland Police Service)[2022] QIRC 276

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Queensland Police Union of Employees & Ors v State of Queensland (Queensland Police Service) [2022] QIRC 276

PARTIES:

Queensland Police Union of Employees and Others

(Applicant)

v

State of Queensland (Queensland Police Service)

(Respondent)

CASE NO:

D/2022/5

PROCEEDING:

Notice of Industrial Dispute

DELIVERED ON:

22 July 2022

HEARING DATE:

7 and 8 June 2022

MEMBER:

Dwyer IC

HEARD AT:

Brisbane

ORDER:

The application is dismissed.

 

INDUSTRIAL LAW – ARBITRATION IF CONCILIATION UNSUCCESSFUL – decision to not maintain 10 hour roster trial for district duty officers at the Sunshine Coast District in the Queensland Police Service – notification of industrial dispute about the decision – consideration of whether the decision was prevented or contrary to statute – consideration of whether the decision was prevented or contrary to the Award – consideration whether the decision was unjust or unreasonable justifying intervention of the Commission in the exercise of the managerial prerogative – decision not unjust or unreasonable in all the circumstances

LEGISLATION:

Industrial Relations Act 2016 (Qld) s 261

Police Service Administration Act 1990 (Qld) ss 2.3, 2.5, 4.8

Police Service Administration Regulation 2016 (Qld) r 7

Work Health and Safety Act 2011 (Qld) ss 17, 19, 275

CASES:

Adams v State of Queensland (Queensland Police Service) [2020] QIRC 110

Peebles v WorkCover Queensland [2020] QSC 106

Timmins v Workers' Compensation Regulator [2021] QIRC 200

West Australian Newspapers Ltd v AMWU [2021] FWA 2795

APPEARANCES:

Mr G Rebetzke, instructed by Mr P Spoto of Hall Payne Lawyers

Mr M Rawlings, instructed by Ms A Howell of the Queensland Police Service

Reasons for Decision

Introduction

  1. [1]
    On 27 January 2022 the Queensland Police Union of Employees ('the Union') and its member Senior Sergeant Stephen Hall filed a Notice of Dispute ('the Notice') pursuant to s 261 of the Industrial Relations Act 2016 (Qld) ('the IR Act'). The Notice identified that inter alia a dispute existed with the Queensland Police Service ('the QPS') within the Sunshine Coast District.
  1. [2]
    The Notice further identified that the subject matter of the dispute centred on a grievance being pursued by the Union and Mr Hall pursuant to clause 7.2 of the Queensland Police Service Employees Award – State 2016 ('the Award'). The grievance arose from a decision by the QPS to cease a trial of a roster for District Duty Officers ('DDOs') based on 10 hour shifts that had been in place since about August 2020 and revert to the roster based on 8 hour shifts.
  1. [3]
    The decision to direct the DDOs to revert to the 8 hour roster was initially made by Assistant Commissioner Connors on 8 September 2021 but was not purported to be put into effect upon notification of a Stage 3 grievance by the Union pursuant to clause 7.2 of the Award. Following completion of actions and representations between the parties pursuant to Stage 3 of the grievance, the decision of Assistant Commissioner Connors was effectively affirmed on 19 January 2022.
  1. [4]
    In essence, while not particularised as such, the Union and Mr Hall seek a final determination from this Commission that would have the effect of the 10 hour rosters for DDOs being maintained indefinitely or until some alternative that addresses their concerns can be put in place. It ought to be noted that while Mr Hall is named in the Notice as a party to the dispute, he is effectively a representative of his cohort of DDOs employed in the Sunshine Coast District.
  1. [5]
    It is noted that the trial of the 10 hour roster commenced in or about August 2020. Prior to this time, for many years, the DDOs worked an 8 hour roster.
  1. [6]
    The dispute was referred to conciliation and conferences were held on 22 February and 24 March 2022, however the matter remained unresolved. With the parties' consent, the matter proceed to arbitration before me for two days commencing on 7 June 2022.
  1. [7]
    The material facts giving rise to the dispute are not in contest. While each of the parties have independently identified a question for arbitration the dispute is quite simple in nature namely, the QPS wish to cease the trial of rosters based on a 10 hour shift for the DDOs and revert to the rosters based on an 8 hour shift. The DDOs want the 10 hour roster to remain indefinitely or at least, some roster arrangement that they consider better meets their fatigue and other concerns arising from the 8 hour roster.

Can the Commission intervene?

  1. [8]
    While the parties have each posed a question for arbitration a more critical preliminary question must be addressed i.e., whether the powers granted to the Commission under the IR Act extend to intervening in an exercise of managerial prerogative.[1]
  1. [9]
    In Adams v State of Queensland (Queensland Police Service)[2] ('Adams') Deputy President Merrell held:

The approach of industrial relations tribunals in Australia in respect of the arbitration of industrial disputes involving the exercise of managerial prerogative is settled.

If an employer's exercise of managerial prerogative is not prevented by statute, an award, a statutory agreement or the contract of employment, the basis for a tribunal, acting as an arbitrator of a dispute, in interfering with what would otherwise be a lawful exercise of managerial prerogative, is for the tribunal to examine all the facts and not to interfere with the right of an employer to manage its own business unless the employer is seeking from the employees something which is unjust or unreasonable.

(Emphasis added)

  1. [10]
    This conclusion provides clear guidance to the limits on the Commission's legitimate interference in such matters.
  1. [11]
    The Union concedes that the decision to revert to the roster based on 8 hours shifts is an exercise of management prerogative or at least, makes no submission to the contrary. The Union's submissions centre on an argument that the decision to revert to a roster based on 8 hour shifts is non-compliant with statutes and the Award and that consequently (and additionally), the decision is unjust or unreasonable.   
  1. [12]
    The QPS contends that the exercise of managerial prerogative in this instance is unaffected by such matters and that the Commission ought not intervene.
  1. [13]
    In the circumstances where the parties appear to agree that the decision to revert to the 8 hour rosters was an exercise of managerial prerogative, I consider (with some minor variation) that items (b) and (c) of the 'chain of reasoning' posited by the QPS in paragraph 15 of their written submission (filed 11 April 2022)[3] is an efficient roadmap to resolution of the preliminary question.
  1. [14]
    Before considering those matters, it is necessary to identify the statutory setting in which the decision in dispute was made.

The Police Service Administration Act 1990

  1. [15]
    The DDOs are employed under the Police Service Administration Act 1990 (Qld) ('the PSA Act').[4]
  1. [16]
    The functions of the QPS include the preservation of peace and good order in all areas of the State.[5]
  1. [17]
    The Commissioner of the QPS is responsible for the efficient and proper administration, management and functioning of the Service in accordance with law.[6]
  1. [18]
    Section 4.8 of the PSA Act relevantly provides:

4.8  Commissioner's responsibility

  1. (1)
    The commissioner is responsible for the efficient and proper administration, management and functioning of the police service in accordance with law.
  1. (2)
    Without limiting subsection (1) , a regulation may prescribe—
  1. (a)
    particular matters within the scope of the prescribed responsibility; or
  1. (b)
    additional responsibilities of the commissioner.
  1. (3)
    The commissioner is authorised to do, or cause to be done, all such lawful acts and things as the commissioner considers to be necessary or convenient for the efficient and proper discharge of the prescribed responsibility.
  1. (4)
    In discharging the prescribed responsibility, the commissioner—
  1. (a)
    is to comply with all relevant industrial instruments and determinations and rules made by an industrial authority; and
  1. (b)
    subject to this Act, is to ensure compliance with the requirements of all Acts and laws binding on members of the police service, and directions of the commissioner; and
  1. (c)
    is to have regard to section 4 .6 and ministerial directions duly given thereunder; and
  1. (d)
    is to discharge the responsibility in relation to such matters as are prescribed for the time being.

(Emphasis added)

  1. [19]
    Regulation 7 of the Police Service Administration Regulation 2016 (Qld) ('the Regs') provides:

7  Particular matters within scope of prescribed responsibility

For section 4.8 (2)(a) of the Act, the following are prescribed as particular matters within the scope of the prescribed responsibility—

  1. (a)
    …;
  1. (b)
    …;
  1. (c)
    the control of the human, financial or other resources of the service;
  1. [20]
    Clearly the management of human resources would extend to responsibility for rosters and fall within the managerial prerogative of the relevant delegated officer of the QPS.
  1. [21]
    The submissions by the Union start with s 4.8(4) of the PSA Act. The Union submits that inter alia the legitimate exercise of the commissioner's responsibilities includes compliance with the Work Health and Safety Act 2011 (Qld) ('the WHS Act') and that, in this instance, in the absence of having undertaken a risk assessment 'as required' by the WHS Act, the decision was not in compliance with the PSA Act.[7]
  1. [22]
    The Union also submits that the decision to revert to the 8 hour roster is not in compliance with the terms of clause 7.2 of the Award.

Clause 7.2 of the Award

  1. [23]
    Clause 7.2 of the Award sets out the procedure for management of grievances. Clause 7.2(b) prescribes the 'procedure' as a three-stage process that requires a grievance to progress through a gradual process of escalation upwards through the chain of management.
  1. [24]
    Notably, clause 7.2(g) places time limits on the completion of each stage of the prescribed procedure. Further, clause 7.2(h) provides that if a grievance is not settled, it may be referred to the 'commission'. Clause 3 of the Award defines 'commission' as the Queensland Industrial Relations Commission.
  1. [25]
    In their submission, the Union particularise the alleged contravention of the Award by reference to clause 7.2(i) which relevantly provides:

Subject to legislation, while the grievance procedure is being followed normal work is to continue except in the case of a genuine safety issue. The status quo existing before the emergence of a grievance or dispute is to continue while the procedure is being followed

(Emphasis added)

  1. [26]
    The Union contends that the decision to revert to 8 hour rosters was made 'in breach of the requirement to comply with the Award while the grievance remained unresolved'.[8]

Is the decision to revert to the 8 hour roster prevented by statute or the Award?

  1. [27]
    The chain of reasoning posited by the QPS in their written submissions subtly mis-states the limits on the Commission's intervention enunciated by the Deputy President in Adams. I suspect this occurs because the submissions of the Union do the same.
  1. [28]
    While it might be argued to be merely semantics, there is arguably a distinction between a decision that is prevented by a statute or Award, as opposed to one that is contrary to such instruments. In my view the term 'prevented' infers an express prohibition on a particular action that is prescribed by a statute or Award.
  1. [29]
    I do not intend to develop this reasoning further though, as my conclusions below do not turn on the distinction I have identified.

The Award

  1. [30]
    The QPS has not contravened the Award. On proper consideration of the facts, I am at a loss to understand how the Union considered such a submission was viable.
  1. [31]
    Firstly, it must be noted that the 'status quo' for the purposes of this dispute was plainly the trial 10 hour roster. Secondly, it is not controversial that the DDOs have continued to work the 10 hour roster at all relevant times before and since the notification of this dispute in the Commission. The status quo has never been disturbed.
  1. [32]
    In those circumstances it is somewhat perplexing to read the Union's submission that the decision to direct a return to the 8 hour roster was in breach of the requirement to comply with the Award. The decision to direct the return to the 8 hour roster[9] was no more than an indication by the QPS that the stage of the grievance procedure they had engaged in at that time was unresolved and at an end. The decision did not have the effect of forcing the DDOs to return to the 8 hour roster against their will and has never been sought to be enforced by the QPS while this dispute was before the Commission. Further, the QPS has, at all times, been appropriately deferential to the Commission's interim recommendations about status quo throughout the conciliation process.[10]
  1. [33]
    Further, the Union overstates the reach of the status quo obligations in the Award. Clause 7.2(i) requires maintenance of the status quo 'while the procedure is being followed'. While the heading of clause 7.2 uses the term 'procedure' as a plural term, the remainder of the references in the clause are singular.
  1. [34]
    The 'procedure' to which clause 7.2(i) refers is expressly identified by clause 7.2(b) as a three-stage process. Upon the exhaustion of Stage 3, 'the procedure' is concluded.
  1. [35]
    Referral of a dispute to the Commission pursuant to clause 7.2(h) might arguably be another 'procedure' for dealing with a grievance in the context of clause 7.2 but it cannot be a 'procedure' contemplated by clause 7.2(i). If it were, clause 7.2(i) would operate in such a way as to improperly usurp the powers of the Commission to make appropriate orders about status quo. Once a dispute is placed into the hands of the Commission, it is the Commission alone that determines whether status quo ought to be maintained.
  1. [36]
    Finally, Part 6 of the Notice of Industrial Dispute filed by the Union plainly pleads steps were taken by the parties in accordance with the grievance procedure, including an exhaustive utilisation of Stage 3. It further plainly pleads that the Union relies on clause 7.2(h) to refer the grievance to the Commission, a step only available when the procedure prescribed by cluse 7.2(b) has been exhausted.
  1. [37]
    It is more than obvious from the Union's own pleadings that the Award has not been contravened but, on the contrary, it has been complied with by the QPS in every respect.

The WHS Act

  1. [38]
    The Union contends that the direction to revert to the 8 hour roster is in breach of WHS Act obligations. It is submitted, in conjunction with the evidence given in proceedings by Professor Dawson that a failure by the QPS to conduct a risk assessment on the 8 hour roster is a 'failure of basic obligations under the WHS Act'.[11]
  1. [39]
    The first great difficulty with this submission is that the WHS Act contains no positive or express obligation for the QPS to conduct a risk assessment. The Union points in their submissions the provisions of sections 17 and 19 of the WHS Act which relevantly provide:

17  Management of risks

A duty imposed on a person to ensure health and safety requires the person—

  1. (a)
    to eliminate risks to health and safety, so far as is reasonably practicable; and
  1. (b)
    if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

19  Primary duty of care

  1. (1)
    A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—
  1. (a)
    workers engaged, or caused to be engaged by the person; and
  1. (b)
    workers whose activities in carrying out work are influenced or directed by the person;

while the workers are at work in the business or undertaking.

  1. (2)
    A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
  1. (2)
    Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable—
  1. (a)
    the provision and maintenance of a work environment without risks to health and safety; and
  1. (b)
    the provision and maintenance of safe plant and structures; and
  1. (c)
    the provision and maintenance of safe systems of work; and
  1. (d)
    the safe use, handling and storage of plant, structures and substances; and
  1. (e)
    the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and
  1. (f)
    the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
  1. (g)
    that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.
  1. [40]
    Neither of the sections of the WHS Act relied on by the Union impose an obligation to undertake a risk assessment. 
  1. [41]
    Indeed, the term 'risk assessment' is not defined by either the WHS Act or the accompanying Regulations, nor is it mentioned in respect of duty holders generally.
  1. [42]
    The only appearance of the term 'risk assessment' in either the WHS Act or the Regulations is (somewhat obliquely) in s 275 of the WHS Act and in provisions of the Regulations dealing with specific activities e.g., diving or confined spaces. It does not appear in any provision directly relevant to the direction to the DDOs to return to the 8 hour roster.
  1. [43]
    Further, in the alternative, given the term 'risk assessment' is not defined (and indeed nebulous in the general sense) I consider that the extensive experience of the QPS operating 8 hour rosters over many decades in every District would adequately serve to discharge their obligations or at the very least, negate a need for a specific assessment of the practice of 8 hour rosters. I consider this especially so when inter alia it seems that complaints about 8 hour rosters appear to be relatively recent, unique, and confined to a very limited cohort of officers in a single District.
  1. [44]
    Something ought to be said of the evidence of Professor Dawson which the Union relied on to support their assertions of WHS Act contraventions. My observation of the professor and the evidence he gave left me thoroughly underwhelmed and more importantly, unconvinced as to the reliability of his comments. His evidence, both in his report[12] and before the Commission, had all the hallmarks of an expert 'gun for hire'.
  1. [45]
    There were a number of difficulties with his evidence. Not least among these was the fact that his opinion was largely confined to criticism of the 8 hour rosters without any balanced comparative analysis with the 10 hour roster arrangements. This was so, notwithstanding he had been expressly asked to comment on this in his report in the first question posited to him by solicitors for the Union.
  1. [46]
    Professor Dawson's observations about comparative accumulated fatigue were therefore critically incomplete, in that he offered no meaningful evidence on how 8 hour rosters compare with the 10 hour roster in that regard.
  1. [47]
    Further, the opinion of Professor Dawson regarding the risk of accumulated fatigue associated with the 8 hour roster was in no small way dependent on his reliance on extrinsic sources. At paragraph 7 of his report Professor Dawson sought to evoke the apparent imprimatur of guidance materials of the WHS Regulator that were not initially in evidence or available for scrutiny by the Commission and cross examination by the QPS.[13] The 'Preventing and managing fatigue related risk in the workplace' guideline ('the guideline') had to be produced by request and even then, a hard copy was not able to be produced until the next day, after Professor Dawson had been excused.[14] Notwithstanding that the Commission ultimately accessed its own copy of the guideline on this occasion, it ought not fall to the Commission to have to undertake the task of producing supporting documents for experts at hearing.  
  1. [48]
    A perusal of the guideline (once it was eventually produced) failed to reveal any 'suggestion' resembling that which was asserted by Professor Dawson at paragraph 7 of his report. At its highest there was an inference that four consecutive nightshifts had some relevance in a template fatigue checklist.[15] In fairness, his report alludes to 'guidance materials' (plural) and there may be others that he has not taken the trouble to identify or provide. No attempt was made to recall Professor Dawson once the guideline was admitted as an exhibit. 
  1. [49]
    In addition to the difficulties arising from absence of these materials for proper consideration while Professor Dawson gave his evidence, I am equally hesitant to rely on a source or sources described as guidance materials that 'suggest' limiting certain shift sequences. Nothing about that language gives me any confidence that the source or sources relied on by Professor Dawson were in any way binding on the QPS in order for them to discharge the obligations under the WHS Act.
  1. [50]
    In circumstances where Professor Dawson (or the Union) have failed to disclose (in any meaningful way) a source relied on by Professor Dawson to reach his conclusion, I am very reluctant to place any weight on that conclusion.[16]
  1. [51]
    Further, as noted by the QPS, neither Professor Dawson nor the Union address the notion of a risk assessment being undertaken in respect of the 10 hour roster. A report that merely asserts risks associated with the 8 hour roster but contains no meaningful comparative analysis with the 10 hour roster is inadequate and incomplete. In addition to that, given the narrow scope of this dispute, there was no analysis of the personal circumstances of each of the DDOs in question and the impact of those circumstances (such as overtime patterns, extent of special duties performed, and external activities such as exercise or sport) on fatigue risk.
  1. [52]
    The second question posited to Professor Dawson was whether, in the absence of a risk assessment, the 8 hour rosters would 'be safe'. Such a question represents the quintessential 'Dorothy Dixer' that arguably would have been objectionable had it been asked of him during evidence in chief.
  1. [53]
    To his credit, Professor Dawson initially declined to answer unequivocally and said that, without a risk assessment, it was impossible to say how unsafe it would be. Unfortunately, having made this reasonable concession he then descended into an opinion which, given the concession, could only be regarded as speculative.
  1. [54]
    Finally, Professor Dawson's evidence on rostering trends in other policing jurisdictions both interstate and overseas was largely unverified and somewhat vague but also, irrelevant. Practices elsewhere are not evidence of the existence of an unacceptable risk arising from the 8 hour rosters in the Sunshine Coast Region.
  1. [55]
    On the whole, the evidence of Professor Dawson was incomplete and unconvincing. It was insufficient to lead me to any conclusions about the inherent risks allegedly associated with 8 hour rosters or that the QPS was in any way contravening the WHS Act.        
  1. [56]
    Other than the submission about the absence of a risk assessment, the Union cites no other conduct by the QPS that contravenes the WHS Act. I cannot identify any either. In those circumstances I am not satisfied that the direction to revert to the 8 hour roster is prevented by or contrary to the WHS Act, the PSA Act, or any other statute.
  1. [57]
    As a final aside, I note that the Union's concerns about 8 hour rosters apparently does not extend to other QPS regions. While there is no evidence before me in these proceedings about practices in other regions, I am conscious that practices vary from region to region depending on staffing and operational needs. I am further mindful that 8 hour rosters have been a feature of police life for (at least) decades. So much was apparently conceded during these proceedings.[17] 
  1. [58]
    The Union has coverage across the State of Queensland and all of the police Districts it contains. There is no suggestion that this dispute is intended to produce an outcome binding all Districts and if there were, a matter of that significance ought to have been conducted very differently.[18]
  1. [59]
    In the circumstances it seems somewhat incongruous for the Union to promote arguments that 8 hour rosters are inherently unsafe but then confine their submissions to a small cohort of DDOs in the Sunshine Coast Region.
  1. [60]
    Presumably, if the Union genuinely considers that 8 hour rosters are as unsafe as Professor Dawson would have the Commission believe, then every officer working a similar roster (not just DDOs and not just on the Sunshine Coast) would be at risk. The limited scope of this dispute is insightful as to the Union's genuine belief in their own arguments.

Unjust or unreasonable

  1. [61]
    The Unions submission in respect of the decision to revert to the 8 hour roster incorporate a submission that the health and safety issues they identified make the decision unjust or unreasonable. I accept such a submission is consistent with the authorities.[19] To the extent their submission relies on safety issues my conclusions above should leave no doubt that, at least as far as safety issues are concerned, I do not consider the decision to be unjust or unreasonable. But consideration of 'unjust or unreasonable' does not conclude there.
  1. [62]
    Both parties have identified the consideration also extends to whether a reasonable person in the position of the decision maker could have made the decision or whether the process for implementing the change was fair.[20] There are a number of other aspects in this matter that therefore require consideration.

Evidence of the DDOs

  1. [63]
    The evidence of the DDOs was not contested or disturbed in any meaningful way. Each of them gave broadly similar evidence extolling the benefits of the 10 hour roster in respect of their physical and mental health, or about how it made them more effective and efficient in their work.[21]
  1. [64]
    I do not require any convincing that the work performed by operational police officers and those who support them is highly stressful and dangerous work. I am under no illusion that such work, when performed over many years, will inevitably produce, at the very least, a deep sense of exhaustion and fatigue, both physically and mentally.
  1. [65]
    Each of the DDOs is a senior (non-commissioned) officer with the QPS. Each of them will undoubtedly have reached a point in their service where the burden of the work they perform is mounting. I have no doubt as to the sincerity and veracity of their evidence as to the benefits of the 10 hour roster for each of them.
  1. [66]
    In particular, Senior Sergeant Hall has put extensive effort into establishing the trial of the 10 hour rosters and then updating his managers and the QPS with the data that demonstrates evidence of the positive and beneficial impact of the roster on the subject of DDOs personal and professional wellbeing.[22] As an aside, I consider that Senior Sergeant Hall's work in this regard is commendable in that it demonstrates a deep commitment not only to the wellbeing of his colleagues, but a desire to produce their best performance for the QPS.

Decision of Assistant Commissioner Connors

  1. [67]
    Balanced against these factors are the responsibilities of senior officers like Assistant Commissioner Connors. It is trite to observe that the role of any employee, in any calling or industry, could always be improved. Whether it should be will depend inter alia on the broader functions and responsibilities of the employer and not simply the most satisfactory arrangements for the employees.
  1. [68]
    The Union asserts a multitude of grounds purportedly demonstrating the decision by Assistant Connors was unjust or unreasonable.[23] Overall I was not convinced from his evidence that the Assistant Commissioner had failed in the multitude of ways alleged in the submissions of the Union, or that his rationale was illogical, or that he had some prejudice against 10 hour rosters. The reasoning that was central to his decision was that an 8 hour roster would result in a slightly increased police presence in the District.[24] This rationale was not surprising and is consistent with well-travelled public sentiment about policing.

Should the Commission intervene?

  1. [69]
    The QPS is without question an essential service. To observe that the QPS performs one of the most critical service functions for the State of Queensland would not put it too highly. The importance of this function means that those who command in the QPS must be able to do so with limited restrictions, and those who serve must be prepared to do so with the expectation that they will find themselves serving in a way that is not always best suited to their personal circumstances. Such is the selfless nature of their calling.
  1. [70]
    I adopt here the observations of the Deputy President in Adams:

[97]  Finally, as referred to earlier in these reasons for decision, the Commissioner is responsible for the efficient and proper administration, management and functioning of the Service in accordance with law. One of the Commissioner's prescribed responsibilities is to decide the deployment of police officers. The Commissioner has the authority to do, or cause to be done, all such lawful acts and things as the Commissioner considers to be necessary or convenient for the discharge of that responsibility. All of the Commissioner's responsibilities are for the functioning of the Service which includes the preservation of peace and good order in all areas of the State.

[98]  The ultimate assessment of the Commissioner's delegate was that the efficient and proper administration, management and functioning of the Service necessitated the allocation of Senior Constable Adams to the St George Division. There is no evidence that decision was motivated by any unlawful or improper reason.   

  1. [71]
    Similarly in this matter, I am not persuaded that the decision to revert to the 8 hour roster was in any way motivated by any improper or unlawful reason. I am satisfied it was a legitimate exercise of the powers granted to Assistant Commissioner Connors under the PSA Act for the preservation of peace and good order. It was ultimately his assessment that the 8 hour roster better serves the community.
  1. [72]
    The fact that the decision does not meet with the personal preferences of the DDOs or the important personal benefits they say they gain from the 10 hour roster does not make the decision unjust or unreasonable. I accept the evidence of the DDOs to the extent they have identified many important benefits from the 10 hour rosters. There will commonly be tension about the arrangements for working hours in every employment relationship.
  1. [73]
    The critical nature of the role played by the QPS makes it acutely important that the Commissioner or their delegate be able to set working arrangements for all officers in a way that best serve the needs of the community. Given the long history and widespread practice of 8 hour rosters throughout the QPS and given the long history of 8 hour rosters worked by DDOs at the Sunshine Coast District prior to the trial of 10 hour rosters (only since August 2020), I am not convinced that the disadvantages potentially to be suffered by the DDOs are sufficient to characterise the change in their roster as unsafe or, it follows, unjust or unreasonable.
  1. [74]
    Further, given the undisputed evidence of the parties engagement with clause 7.2 of the Award and the good faith demonstrated by the QPS to volunteer undertakings to extend the trial and maintain the status quo of the 10 hour roster, I am satisfied the processes surrounding the decision to revert to the 8 hour rosters was fair. 

Conclusion

  1. [75]
    The impugned decision to revert to the 8 hour roster was not constrained or prevented by operation of statute or the Award. It was not otherwise unjust or unreasonable. In those circumstances the Commission ought not intervene in the employer's exercise of managerial prerogative.
  1. [76]
    In those circumstances it is unnecessary for me to directly address the questions for arbitration posited by the parties, though the answers would be implicit in my findings above.
  1. [77]
    The Union's application to arbitrate this dispute is dismissed. 

Footnotes

[1] Each of the questions posed by the parties arguably asked something akin to this question, but not directly.

[2] [2020] QIRC 110 at [65]-[66].

[3] Which is essentially a re-statement of the observation of Merrell, DP in Adams

[4] Police Service Administration Act 1990 (Qld), s 2.5A.

[5] Police Service Administration Act 1990 (Qld), s 2.3(a)(i).

[6] Police Service Administration Act 1990 (Qld), s 4.8(1).

[7] See paragraph 52 of the Union’s written submissions filed 4 April 2022.

[8] See paragraph 56 of the Union’s written submissions filed 4 April 2022.

[9] Either at the time Assistant Commissioner Connors made it in 2021 or when it was effectively affirmed in January 2022.

[10] Which has had the practical effect of allowing generous extensions of the 10 hour roster trial.

[11] See paragraphs [47]-[48] of the Union’s submissions filed 4 April 2022.

[12] See attachment 'DD-4' to Exhibit 7.

[13] The report of Professor Dawson merely provided a reference containing a hyperlink to a website.

[14] T 1-73, l 32 – T 1-74 l 46; Exhibit 10 'Preventing and managing fatigue related risk in the workplace'.

[15] Se page 20 of Exhibit 10.

[16] See also Peebles v WorkCover Queensland [2020] QSC 106 at [66]-[74]; Timmins v Workers’ Compensation Regulator [2021] QIRC 200 at [59]-[60].

[17] Conceded or at least not contested. T 2-20, ll 10-30.

[18] For example, by referral to a Full Bench.

[19] See for example West Australian Newspapers Ltd v AMWU [2021] FWA 2795 at [26].

[20] See Union submissions filed 4 April 2022 at paragraph 22. See also QPS submissions filed 11 April 2022 at paragraphs [9]-[13].

[21] See Exhibits 2, 4, 5, 6, and 8.

[22] See for example exhibit 'SH-29' to Exhibit 2.

[23] See paragraph 36 of the Unions submissions filed 4 April 2022.

[24] T 2-6 ll 1-10.

Close

Editorial Notes

  • Published Case Name:

    Queensland Police Union of Employees & Ors v State of Queensland (Queensland Police Service)

  • Shortened Case Name:

    Queensland Police Union of Employees v State of Queensland (Queensland Police Service)

  • MNC:

    [2022] QIRC 276

  • Court:

    QIRC

  • Judge(s):

    Dwyer IC

  • Date:

    22 Jul 2022

Appeal Status

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