Commissioner of Police v Queensland Police Union of Employees [1994] ICQ 16 (1994) 157 QGIG 648

648 QUEENSLAND GOVERNMENT £NDUSTRIAL GAZETTE f 15 July. 1994 ###################################################### QUf:E"SLA'JD INDUSTRIAL COURT Industrial Rel{llfons Act 1990 ,. l 18(2)-- appeal from decision of industrial commisston Commissioner of Police Queensland Police '"Union of Employees'· (So C9 of! 99-! ! Jl]STICE MACKENZIE_ PRl-'.SIDI N f 30 June I 994 Appeal - Decision of lndustri:.il Commission Interpretation Police Servtec A,\ard - State: - Annual Leave - Deferred I.eave - Recall - Overtime - Appeal Allowed. JLiDCiMENl rhc Commissioner of Police has appealed against an interpretation of cl4 9(21 of the Police Service Award - State made b1 a Commisswncr on 18 f\larch 1994. The clause reads as foilows:- .. i ~) !\n) emp!Cl)CC rccal led to perfom1 duty after completing a normal \York period ,n shirt. or reealleJ to pcric1nn duty whilst on Annual. I on? Ser, ice, Sick I ea, e, Leave without l'ay, Rest Day or a progr,unmeJ Day Off ~h;:ill be paid at overtime rates for such duty with a minimum payment nf three t 3) hours at overtime rJtcs. Such duty shall include time rcason:ibly spent in lrnn,11111!!- t11 and frum work in r.:Iation to such rccalL". The hrief 1~1-:t, uf the matter an.; that .Sm Scrgcant \\-'c:bb~r, a \cencs nr Crimes Ofticer. applied for recreation kaw from 25 October to 1-: December 1993. The ka\ e was granted on 11 October l 993 On '.1 Ncwemher l 99:,, while he was on leave. Snr Sergeant Wet,ber w:is re4utred tn return hl tluty lo complek :.11 case work 011 an inn!~tigati<1n in which he had previously been involved and which was tu be set do¼11 for committal proceedings on 13 December 1993. On 11 Novcmher 1993, following a request from Snr Sergeant Webber, he was directed in writing to n:turn to Juiy on 15 November 199.3, for the reasons previously given. He was advised that his return was pursuant to general instruction 7.110 and that he would be credited ,,ith leave entillemcut for the full period re4uircJ for the perform.inee of his wsk. The advice of 11 November was further clarified on 12 Nm ember, stating that the leave was deferred until further notice given the unknow11 length of the time that the task would take to complete. After Snr Sergeant Webber ha<l recommenced dutv he was, on 18 November, a<lviscd or an a<lditional urgent case for which he had to prepare a statement prior to 20 December 1993. He was advised in ,Hi ting that the deferment of recreation leave \\ ould continue until the additional statement and exhibits had been prepared. On 29 Nm emher 1993, Snr Sergeant Webher suhmitted au application for 0vc11i1nc: for the period 15 Novembc:r 1993 to 26 November 1993. On 7 December. which was the date of completion nf all ncccssarv wmk he submitted a fo1iher overtime claim for the period 29 November to 7 December 1993. Before he could resume annual leave he was required to reapply for leave and was grantecl kavc from 8 December to 24 December 1993. The issue is deceptively simple. It is whether in tem1s of cl.4_9(2) Snr Sergeant Webber was ''recalled to perfom1 duty whilst on Annual -···· leave'' or whether, his leave having been dt:fi;rrcd by the time ht: relurrn:d tu July, he was not recalled to perfom1 duty while on annual leave within the meaning of cl-4-9. General Instruction 7.110 relates to court attendance becoming neces,ary after leave is granted. It imposes an obligation upon a member of the force who has been granted leave of absence and becomes involved in any case which will necessitate Im attendance al court <luring the currency of the kave to promptly n;port the matter in order that the necessity or otherwise of deferring such leave may be given consideration. It will be noted that that oh ligation rests upon the member but it clearly envisages that one option in such a case is to defer leave which has been granted. There is no apparent reason why this provision should be restricted in scope in any way. Sc, far as annual leave is concerned, cl.5.1(5) of the Award prescribes that the time when annual leave shall be allowed, shall be at the discretion of the Commissioner. The proviso to subclause (5) is concerned with the situation \\here an employee has made applicauon for annual leave and such leave is deferred for dt:partmcnlal reasons. It does not indicate clearly whether it is concerned with a situation where leave which has been approved is then deferred or whether it is only concerned with a case where leave has been applied for but is deferred for departmental convenience but. once again. there is no reason to believe it is limited in scope. General Instruction 7.112 sheds no light on the matter either. The appellimt ~ubrnitted lhat Lhe issut: was not whether there ha<l been a recall hut wh~t was the pnrpose 0f the recall. The detem1ining factor was whether it was a ri:cal.l to perlom1 work whilst on annual leave. As the annual leave had been deferred. to the knowl.:dge of the employee, before the actual return to duty occurred. he was not recalled to pcrtonn work whilst on unnual lc;:l\ c. As a result of the deferral of the leave. it was m ailablc to be taken on a later occasion and when he actually performed the work he wa, nnt 011 mrnual lea, c It ,,as ,ubmitted that the employc:e wuuid, if th~ lnJustnal Comm1ssiunc(s mterprelatiun was correct. have the bcnctir of both the annual leave and payment at overtime rates for pcrfonrnng the work occ:urring at .i penod when he \\ as no lonμer on annual leave because it had been deferred. 15 July, I 994 j QUEENSLAND GOVERNMENT Il\DUSTRIAL GAZETTE The respondent di<l not challenge the Industrial Commissioner's llltcrprctation of whether there had been a recall. It was submitted that the industrial Commissioner had correctly found that the e:nplnyee was actunlly on annual leave ,1hcn directed to return to duty. It ,-:is submitted that it was irrdevant tr> an en1ployce •s entitlement to he paid ov<:rtinie rates whether his leave lrnd bcc·n (kkrre<l b) the time he came tu perfom1 th-: J11ty in question. !lie cnlltlemcnt to be paid overtime rates arose because of the performance of the duty for which he had been recalled to perform. It "as submitted that the appellant's proposed interpretation lctt the v.ay open for the entitlement to (WCrtimc rates to prove illusory because any eutitlt:rnent tu be paid at overtime rates could he cir,·umvcrllc<l by leave being Je/em;d. It was suhmittcd that. on the appcllan( s argument, the emplovcc had to be on leave at the same time as he was pcrforrmng duty which was a difficult conccpt to grasp and was not supported by the lang.uagc of cl.4.9(2). It was sut1icirnt for the cmpln)CC to he on kavc al the time h.: was recallt:d (ie. at the ti1m: he received direction tn rclurn to work). It did not matter that hy the time he came' to perform the July in question his leave ma\ have been dd'crreJ bccausc the entitlement to overt11ne arose from the pcrfonnancc of' duty in consequence of a direction to pcrlc,rm it \\ hich was gi,cn to hun at a time ,d1en he wa, on leave During the course of the hearing it became apparent that \\hate\cr interpretation was applied there would anomalies. The Industrial Commissioner in his reasons has pointed out that where a pcr,on ha, had lc..ivt: approved and has comrm:n-:ed such leave, an) recall to duty may cause economic consequences beyond the amount of recompense that overtime would provide. lh.: clause is ambiguousl1 dratkd. but in my opinion, the proper mtcrprctation is that in the circumstances of the case, the officer \vas not on annual leave during the period when he performed duty His 1cm c had hcen dcfcm;J so that it n;maim:<l avadahlc to be lakcn at a later lnne. At the time when he performed the duty he had been recalled to rcrfomL he \\as not on Annual Le:ivc because the leave hatl been deferred. That is to be contrasted with a case when; a person is required for some temporar: purpose to perform dut::, during the currency ofa pcrtod of leave (eg. at a time when leave has hccn aprnwcd and not deferred) l he appeal must therefore be allrmeJ. It ts Jcclarcd that Snr Sergeant Webber was not entitled under s.1.9(2) of the Award to payrnent at ovcrtin1c rates. Dated this thirtidh Jay of June, 1994. K.Ci \\ \1ACKENZIL President. \lr J. \lurdoch (instructed hy the Crown Solicitor's Office) for Comn1i:,~ici11l.T or Polict:. \lr l'. Applegarth (instructed by Gilshcnan & Luton) for Queensland Police --1 'nion ot l·.ruployccs·· Operative Date: 1\/A Commissioner of Police -v- ()ucensland Police •·Union or L111plu, ,'CS,. Rclcct:,ed: :rn J IJllC 1994 649 -- 1 of 1 --