QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	
	Queensland Police Union of Employees v State of Queensland (Queensland Police Service) [2017] QIRC 034
	
PARTIES:	
	Queensland Police Union of Employees 
(Applicant)

v

State of Queensland (Queensland Police Service)
(Respondent)
	
CASE NO:
	TD/2016/121	
PROCEEDING:
	Application for Reinstatement	
DELIVERED ON:

HEARING DATE:
	11 April 2017

16 March 2017
	
HEARD AT: 
	Brisbane
	
MEMBER:
	Industrial Commissioner Black	
ORDER:
	1.	Jurisdictional objection dismissed. 
	
CATCHWORDS:	APPLICATION FOR REINSTATEMENT - Jurisdictional objection – whether s 72(1)(b)(i) of the Industrial Relations Act 1999 precluded an application for reinstatement – whether the terms of a written agreement complied with s 72(1)(b)(i) of the Industrial Relations Act 1999 – discretion granted to the employer to extend the probationary period – duration of longer probationary period not specified in written agreement. 
	
CASES:	Industrial Relations Act 1999, s 72(1)(b)(i), s 73; Police Service Administration Act 1990, s 5.12.  
	
APPEARANCES:	Mr PJ Davis QC, Counsel instructed by the Queensland Police Union Legal Group, for the Applicant
Mr J Merrell, Counsel instructed by the Public Safety Business Agency, for the Respondent

Decision

[1]	The Queensland Police Union of Employees (QPU) filed an application for reinstatement on behalf of Mr Jon Wheeler on 23 December 2016. In the application it was claimed that the decision to terminate Mr Wheeler's employment was harsh, unjust and unreasonable. It was not suggested that the employment was terminated for an invalid reason. 

[2]	Mr Wheeler had commenced employment with the Queensland Police Service (QPS) as a Police Recruit in Townsville on 6 January 2015. He was sworn in as a Probationary Constable on 18 June 2015. His employment with QPS was terminated on 8 December 2016.

[3]	In response to the application for reinstatement, the QPS has raised a jurisdictional objection. It has argued that at the time of termination of his employment, Mr  Wheeler was serving a period of probation and was therefore prevented from bringing an unfair dismissal application by the operation of s 72 of the Industrial Relations Act 1999 (the IR Act).

[4]	This decision is concerned only with the jurisdictional objection taken by the QPS.

[5]	Mr Wheeler was informed of his appointment as a Police Recruit in correspondence dated 25 November 2014. In this correspondence Mr Wheeler was informed that if he wished to accept the appointment offered he was required to complete an Acceptance of Appointment form and return the form to the QPS as soon as possible.

[6]	Mr Wheeler completed and signed the Acceptance of Appointment form on 26 November 2014. A clause included in the form dealing with "Probation" was expressed in the following terms:

		"PROBATION

I acknowledge that, should I be accepted as a police officer, I agree to and will be subject to the probation periods as prescribed by the Police Service Administration Act 1990; or any subsequent legislation or industrial instrument which may contain provisions about probation."

[7]	The effect of the probation clause in the acceptance form, when read in conjunction with s 5.12(2) of the Police Service Administration Act 1990 (PSA Act), was that, on appointment, Mr Wheeler accepted that his probationary arrangements would be determined by the Commissioner of Police (the Commissioner) in all respects except that the PSA Act required that his initial period of probation not be less than 12 months. Section 5(12) of the PSA Act relevantly provides:

"5.12 Appointment on probation

(1)	This section does not apply in relation to an appointment as an officer made on a contract basis.

(2)	An appointment as an officer of a person who was not an officer immediately before the appointment is an appointment on probation—

(a)	for a period not less than 12 months determined by the commissioner; or

(b)	in the absence of such a determination, for a period of 12 months.

…

(4)	The commissioner may—

(a)	in respect of an appointee referred to in subsection (2)—

(i)	at any time during the initial period of probation or during any extension of a period of probation, terminate the employment of the appointee; or

(ii)	at the end of any period of probation, confirm the appointment, extend or further extend the period of probation or terminate the employment of the appointee; or
… . "

[8]	It was accepted that Mr Wheeler commenced employment subject to a probationary period of 12 months which was due to expire on 18 June 2016. At this time Mr Wheeler would have expected that his appointment as a police officer would have been confirmed, however on 6 June 2016 a complaint was filed against Mr Wheeler, and on 10 June 2016, pending an investigation into the complaint, Mr Wheeler's probationary period was extended. 

[9]	The complaint ultimately led to the termination of Mr Wheeler's employment on 8 December 2016. It was not in dispute that, at the time of termination of his employment, Mr Wheeler was serving a period of extended probation.  It was in these circumstances that the QPS submitted that s 72(1)(b)(i) of the IR Act operated to remove access to an unfair dismissal remedy. Section 72 of the IR Act relevantly provides:

"72 Employees to whom this chapter does not apply

(1) 	Section 73(1) does not apply to-

(a)	an employee during the first 3 months of employment with an employer (the probationary period), if the dismissal is for a reason other than an invalid reason, unless the employee and employer agree in writing that the employee serve—

(i) 	a period of probation that is shorter than the probationary period; or

(ii) 	no period of probation; or

(b) 	an employee serving a period of probation that is longer than the probationary period, if—

(i) 	the period decided, by written agreement between the employee and employer before the employment started, is a reasonable period having regard to the nature and circumstances of the employment; and

(ii) 	the dismissal is for a reason other than an invalid reason; or

… . "

[10]	Part 5 of the PSA Act deals with the appointment of personnel. The effect of clause 5.12 of the PSA Act for the purpose of these proceedings is to provide that new entrants to the police service must be appointed subject to probationary arrangements. These probationary arrangements provide for an initial probationary period no less than 12 months and also provide that the initial and subsequent periods of probation may be extended at the discretion of the Commissioner of Police. On my reading, the PSA Act does not limit the discretion to extend or further extend the probationary period. It follows that an employee may be employed under probationary arrangements indefinitely. Section 5.12(4) of the PSA Act provides that the Commissioner may terminate the employment of an appointee "at any time during the initial period of probation or during an extension of a period of probation". 

[11]	While the PSA Act makes specific provision for probationary periods and provides that the employer may terminate the employment of an appointee at any time during the initial period of probation or during an extended period of probation, it was not argued by the QPS that these provisions should override or displace the operation of s 72 and s 73 of the IR Act, either in whole or part. The effect of this concession is that the determination of the jurisdictional issue will turn on the construction of the IR Act, and whether the probationary arrangements implemented by the QPS complied with the provisions of the IR Act. 

[12]	The QPS submitted that in signing the acceptance form, Mr Wheeler was executing a written agreement which complied with s 72(1)(b)(i) of the IR Act. Under this agreement the provisions of s 5.12 of the PSA Act were incorporated in the agreement. By virtue of the agreement Mr Wheeler was contractually bound by probationary arrangements set by s 5.12 of the PSA Act. In particular, Mr Wheeler agreed that both the duration of the initial probationary period and the duration of an extended probationary period would be set by the Commissioner of Police. It was the submission of the QPS that (T1-6):

"Mr Wheeler agreed, prior to his employment, as a probationary constable, agreed to and agreed to be subject to a period of probation which was 12 months and he agreed to a period of probation which could be extended beyond 12 months but that period being determined by the Commissioner."  

[13]	If followed from the QPS submission that s 73(1) of the IR Act did not apply, and that Mr Wheeler was precluded from bringing an unfair dismissal application.

[14]	The QPU accepted that in completing his acceptance form Mr Wheeler had entered into a written agreement with his employer which constituted a "written agreement" for the purposes of s 72(1)(b)(i) of the IR Act. Nor did the QPU cavil with the applicant's submission that the probation term of the acceptance form incorporated s 5.12 of the PSA Act into the written agreement constituted by the acceptance form. It was also accepted that the result of the incorporation of s 5.12 into the agreement was that the terms of s 5.12 were given both statutory and contractual effect. The QPU also stated that it did not contest the jurisdictional argument on the basis that the relevant probationary periods ought to be considered unreasonable having regard to the nature and circumstances of his employment.

[15]	The QPU submitted that neither the initial probationary period nor the extended period of probation, was determined by agreement between the employer and the employee. It was the submission of the QPU that there was "no evidence whatsoever of any written agreement whereby the periods of probation served or being served by the applicant" were periods decided by written agreement between Mr Wheeler and the Commissioner of Police.  The effect of the QPU submission was that s 72(1)(b)(i) of the IR Act is triggered where there is a written agreement entered into prior to the commencement of employment and where the written agreement decides the period of probation. In this case it was submitted that the written agreement did not specify that the initial period of probation was to be 12 months, nor did it specify the duration of the extended period of probation.

[16]	The QPU also submitted that while a term of the written agreement involved an acceptance by Mr Wheeler that the employer may decide the period of probation, a period of probation was not specified in the written agreement. That is, that an agreement by an employee to allow his employer to extend or set a probationary period, cannot be construed to mean that a probationary period has been decided by written agreement. It was submitted that (T1-12):    

"There’s no period that is identified in the written agreement.  There’s no period that is agreed.  There is no period which is decided.  There is no period which – upon which the Commission could make a determination of whether that period is reasonable.  It’s just simply an abrogation.  And when one looks at it that way the whole point of section 72 would just be defeated because it’s basically saying – if our opponents are correct, a covenant which just basically said, “I agree that you can have me on probation for as long as you like,” would forever defeat chapter 3 and that can’t be, in our respectful submissions, what’s intended."

[17]	The QPS submitted that it was wrong to articulate a proposition that the effect of the written agreement was to abrogate or transfer responsibility to fix a probationary period in circumstances where the effect of s 5.12(2)(b) of the PSA Act was to set an initial probationary period of 12 months. In this regard, the QPS is only partially correct. While it is correct to say that Mr Wheeler knew and consented to a probationary period of at least 12 months, s 5.12(2)(b) of the PSA Act however also allows the Commissioner to set an initial probationary period longer than 12 months. In this context no distinction can be drawn between the initial period and the extended period.

Conclusion

[18]	The effect of the written agreement is that the employee knows and consents to serving an initial probationary period of not less than 12 months.   He also knows that the initial probationary period may be longer than 12 months. Further, he knows and consents to any extension of the initial probationary period. The employee also knows and consents to the Commissioner of Police exercising a discretion about the duration of the initial period, about whether the initial period should be extended, and about the duration of any extended period. The jurisdictional objection turns on whether these arrangements comply with the provisions of s 72(1)(b) of the IR Act.

[19]	The unfair dismissal provisions of the IR Act are crafted in such a way as to limit the extent to which an unfair dismissal right can be excluded by virtue of the operation of probationary provisions. This purpose is achieved by setting conditions which must be complied with before the statutory probationary period can be exceeded. Satisfaction with these conditions, which are set out in s 72(1)(b)(i) of the IR Act, permits a probationary period longer than the 3 months statutory probationary period. 

[20]	The first condition specified is that the longer probation period is to be decided or specified. The second condition is that the employer and employee must agree on the longer probationary period. Thirdly, the agreement between the employer and the employee must be reduced to writing. Fourthly, any agreement to extend the statutory period must be entered into before the employment started. Finally, any longer probationary period agreed to must be reasonable having regard to the nature and circumstances of the employment.  

[21]	The final condition imposes a safeguard or a constraint on the agreement making capacity of the employer and the employee. That is, notwithstanding that there may be an agreement about a longer probationary period, the unfair dismissal remedy is not excluded if the longer period is not reasonable. This safeguard however cannot be put to work without the written agreement also specifying the actual period of the probation that has been agreed to between the employer and the employee. If a term is not specified, it is not possible to make a determination about reasonableness, and the efficacy of the subsection is therefore undermined.

[22]	The difficulty with the QPS arrangements is that the PSA Act allows for indefinite periods of probation to be set at the discretion of the Commissioner after the written agreement has been entered into. While it is possible that the employee becomes aware of the duration of his probation soon after signing his acceptance form, he does not know at the time of entering into his written agreement what the duration will be. The indefinite character of probationary arrangements under the PSA Act is not consistent with the scheme of the unfair dismissal provisions of the IR Act.

[23]	If the purpose is other than to exclude unfair dismissal rights, there is no fetter on an employer's discretion to set probationary arrangements. In so far as the QPS is concerned, the PSA Act specifically authorises the Commissioner to do so. However if the purpose includes a requirement that unfair dismissal rights be excluded, then the probationary arrangements in place must comply with s 72 of the IR Act. 

[24]	The deficiency in the acceptance form is that it does not specify the period of probation. In terms of the initial period of probation, this deficiency can be remedied by the specification of an initial probationary term of 12 months. The remedy in the event of extended periods is less straightforward. If the initial probationary term is included then the conditions set by the IR Act are satisfied in respect to that period. There is a written agreement, the period of probation is specified, and the agreement is entered into before the commencement of employment.

[25]	The proposal advanced by the QPS that Mr Wheeler's application for reinstatement be dismissed because of a lack of jurisdiction has not been sustained. There is no impediment to the progression of the application for reinstatement. I so order.