QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Whitaker v State of Queensland (Queensland Police Service) [2022] QIRC 351

PARTIES:	
	Whitaker, Suzanne
(Notifier/Applicant) 

v

State of Queensland (Queensland Police Service)
(Respondent)
	
CASE NO:
	D/2021/20
	
PROCEEDING:
	Arbitration of a dispute
	
HEARING DATES:

DELIVERED ON:	25 March 2022

12 September 2022

MEMBERS:

HEARD AT:	Pidgeon IC

Brisbane

ORDERS:
	In answer to the question for arbitration, namely: Did the State of Queensland (Queensland Police Service) act in accordance with the provisions of the Police Service Administration Act 1990 (Qld), the Police Service Administration Regulations 1990 (Qld), the Queensland Police Service Certified Agreement 2019 (EB9), the QPS Lateral Transfer Policy, and the Detective Training and Appointment Policy in using the lateral transfer process to fill positions 1-906461 and 1-922363?

The answer is: 'Yes.'
	
CATCHWORDS:	INDUSTRIAL LAW – ARBITRATION OF AN INDUSTRIAL DISPUTE – conciliation unsuccessful – matter referred for arbitration – Notifier challenges positions being filled by lateral transfer process – whether the Respondent filled the positions in accordance with Police Service Administration Act 1990 (Qld), the Police Service Administration Regulations 1990 (Qld), the Queensland Police Service Certified Agreement 2019 (EB9), the QPS Lateral Transfer Policy, and the Detective Training and Appointment Policy – determination of question for arbitration – answer to question for arbitration is: 'Yes.' 
	
LEGISLATION:

	Acts Interpretation Act 1974 s 14B

Industrial Relations Act 2016 ss 262, 451

Police Service Administration Act 1990 ss 5 

Police Service Administration Regulations 1990 r 13

Queensland Police Service Certified  Agreement 2019 (EB9) cls 10, 13, 14, 64, 65, 66, 67	
CASES:	AMWU v Berri [2017] FWCFB 3005

Connie & Ors v O'Sullivan [2000] QSC 307 
	
APPEARANCES:	Mr J McDonald of Sibley Lawyers for the Notifier/Applicant

Ms A Howell for the Respondent
	
Reasons for Decision

Background

[1]	Ms Whitaker (the Notifier) is a Plain Clothes Senior Constable employed by the Queensland Police Service (QPS) (the Respondent).

[2]	Ms Whitaker initiated this dispute to challenge what she says is the:

'…practice utilised by QPS in advertising positions such as [Criminal Investigation Branch] and [Child Protection Investigation Unit] vacancies, as well as other positions, as 'Transfer at level' giving them [transfer at level] reference numbers.  Due to this, they are appearing as lateral transfers when Gazetted and such staff are being advised they are closed merit and not reviewable'. 

[3]	Ms Whitaker's dispute relates specifically to the two positions 1-906461 and 1-922363 which appeared in the Queensland Police Service Gazette (the Gazette) as position TL179/20.  Ms Whitaker does not seek to have the transfer at level to the positions set aside.  Instead, Ms Whitaker seeks a decision as to whether the role was properly filled as a lateral transfer under the QPS Lateral Transfer Policy (the Policy). 

[4]	Ms Whitaker and the Respondent participated in conciliation conferences at the Queensland Industrial Relations Commission on 24 March 2021, 23 April 2021, 16 July 2021 and 23 September 2021.  Despite the best efforts of the Commission to assist the parties to reach a settlement of the dispute, the matter remained unresolved and the parties requested that the matter be referred for arbitration. 

[5]	The matter was referred for arbitration pursuant to s 262(3) of the Industrial Relations Act 2016 (Qld) and the proposed question to be determined, as agreed between the parties, is:

1.	Did the State of Queensland (Queensland Police Service) act in accordance with the provisions of the Police Service Administration Act 1990 (Qld), the Police Service Administration Regulations 1990 (Qld), the Queensland Police Service Certified Agreement 2019 (EB9), the QPS Lateral Transfer Policy, and the Detective Training and Appointment Policy in using the lateral transfer process to fill positions 1-906461 and 1-922363?

[6]	At the hearing, Ms Whitaker's representative, Mr McDonald, said that the Applicant does not contend that the QPS failed to act in accordance with the Detective Training and Appointment Policy. Mr McDonald also said that as Police Service Administration Regulations 1990 (Qld) (the Regulations) regulation 13(c) provides that the basis for Lateral Transfers or Transfer-at-Level is the Queensland Police Service Certified Agreement 2019 (the Certified Agreement), the Applicant does not contend that the QPS failed to act in accordance with the Regulations.

Relevant sections of instruments to be considered in answering the question for arbitration

Police Administration Act 1990 (Qld)

[7]	Section 5.2 of the Police Service Administration Act 1990 (Qld) (the PSAA) states:

(1)	In this section – 

transfer of a police officer to a position means the appointment of a police officer to a position in which the police officer will hold the same rank and be entitled to at least the same level of salary.

(2)	A decision to appoint a person to a police officer position must be made by fair and equitable procedures that –  

(a)	include inviting applications and selection on the basis of the merit of the applicants; and
(b)	prevent unjust discrimination, whether in favour of or against a person.

(3)	However, if a decision is made to transfer a police officer on a basis prescribed by regulation, the decision need not involve the procedures mentioned in subsection (2)(a).

Police Service Administration Regulation 2016

[8]	Regulation 13 of the Police Service Administration Regulation 2016 (Qld) (the PSAR) states as follows:

13 Transfers that need not be on the basis of merit

For section 5.2(3) of the Act, each basis as follows, if it applies to the officer in relation to the transfer concerned, is prescribed – 

(a)	a determination under the Industrial Relations Act 1999, section 149B(1); 

(b)	a determination under the Industrial Relations Act 1999, section 149(2), as in force before 17 February 2012, made before 17 February 2012 and operating after 16 February 2012; 

(c)	an industrial agreement between the commissioner, the Queensland Police Union of Employees and the Queensland Police Commissioned Officers' Union of Employees; 

(d)	an award, including an award made under a law of the Commonwealth, replacing an industrial agreement mentioned in paragraph (c). 

[9]	The relevant industrial instrument is the Queensland Police Service Certified Agreement 2019 (the Certified Agreement).

Queensland Police Service Certified Agreement 2019

[10]	Clause 14 of the Certified Agreement states: 

14 Vacancies to be Advertised
	
(1)	Except where provided for in clause 13(2)(e), clause 64 and clause 86 of this Agreement, where a position becomes vacant or any new position is created relating to a rank above that of Senior Constable, the Commissioner shall, prior to any permanent appointment being made, cause to be published in the first reasonably available Queensland Police Gazette a notice of such vacancy which shall invite applications from all those eligible employees who wish to compete for the position.
 
(2)	Vacancies filled through the Lateral Transfer provisions (Part Six) of this agreement are not required to be advertised under this clause.

[11]	Clause 10 of the Certified Agreement includes the following definition:

Lateral Transfer – the process of transferring non-commissioned officers within the Service (in response to one or more operational factors unless otherwise provided for within this Agreement) at the existing rank to a position and/or location at an equivalent rank, without advertisement of that position. A Lateral Transfer excludes transfers made as a discipline sanction under the Police Service Administration Act 1990.

[12]	Furthermore, 'closed merit' is defined at cl 10(4) of the Certified Agreement as follows:

Closed merit – for non-commissioned officers, means a process of selection used in a transfer situation where the vacancy is not advertised on open merit, but more than one person has been identified as potential transferees.  Decisions shall be on the basis of those skills and abilities identified as being necessary for the position.  However, issues such as tenure, location, current rank, special qualifications may also be determining factors.  Thus closed merit is applied within the relevant closed pool of employees on the same rank who have expressed their interest in transferring to a position, rather than within a wider pool which would be created by advertising the vacancy.

[13]	Part Six of the Certified Agreement is titled 'Transfers, Relocation Expenses and Travelling Entitlements'.  The first part of Part Six is titled 'Lateral Transfers – Non-Commissioned Officers' and begins with cl 64.

[14]	Clause 64 provides an introduction outlining the basis for Lateral Transfers. Clause 64(4) states: 

(4)	Lateral transfers provide a facility for the transfer of officers at their substantive rank to other positions and/or locations in limited circumstances without the need to advertise and fill positions on an open merit basis. 

[15]	Clause 65 of the Certified Agreement sets out operational factors that 'do not give an automatic right to a lateral transfer and may be utilised by either management or an employee in making submissions/applying for a lateral transfer'. Thirteen 'operational factors' are listed.  Relevantly for this matter, one of the operational factors is:

(2) 	Expressions of interest/Transfer at Level Opportunities: This is a process whereby the Commissioner selects an employee from the relevant pool of employees on the basis of closed merit. Where there is a dispute regarding tenure then the implementation of any lateral transfer under this operational factor will be delayed until the dispute is resolved. 

Provided that Sergeant and Senior Sergeant positions will be filled on an open merit basis other than in cases where it is proposed to invite expressions of interest from surplus officers at the relevant rank.
 
[16]	The other operational factors listed in cl 65 are: Organisational Restructuring; Health or Compassionate Grounds; Service in Isolated/Difficult Postings; Service in Particular Postings; To/from Surplus; External Agencies; Rotations; Positions requiring pre-training; Swaps; Resource Management; Partners Employment; and Personal Reasons.

QPS 2014/12 Lateral Transfer Policy

[17]	QPS 2014/12 Lateral Transfer Policy, Police Officers states:

The lateral transfer facility is not intended as a substitute for or means of avoiding the open merit system for filling vacant positions in the Queensland Police Service.  Rather, its intention is to provide a mechanism to permit the transfer of members with compelling grounds at their substantive ranks.

[18]	The Lateral Transfer Policy states that it should be read in conjunction with the Lateral Transfer Guidelines 2014/12.  With regard to lateral transfers, the Guidelines state:

In balancing the competing needs of the Service and the needs of individual employees, the following factors will be considered:

•	The relevant provisions of the Police Service Administration Act 1990 which gives responsibility to the Commissioner for determining the number, deployment and location of staff; 

•	Whether the efficient management of the Service is better served by making an appointment based on lateral transfer rather than an open, merit based advertising process; and 

•	The need to ensure fair and reasonable processes and treatment of all employees in the Police Service. 

[19]	Section 451 of the Industrial Relations Act 2016 (the IR Act) addresses the general powers of the Commission:

451 General powers

(1)	The commission has the power to do all things necessary or convenient to be done for the performance of its functions.

(2)	Without limiting subsection (1), the commission in proceedings may – 

(a)	give directions about the hearing of a matter; or

(b)	make a decision it considers appropriate, irrespective of the relief sought by a party; or

(c)	make an order it considers appropriate.

[20]	In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Trading as Australian Manufacturing Workers' Union v Townsville City Council [2021] QIRC 063, I had regard to Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005 (Berri) and noted that the principles set out in Berri have previously been applied by the Commission in the interpretation of an enterprise agreement:

[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. 	The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) 	the text of the agreement viewed as a whole;

(ii) 	the disputed provision's place and arrangement in the agreement;

(iii) 	the legislative context under which the agreement was made and in which it operates.

2. 	The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. 	The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the
parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. 	The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. 	The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. 	Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. 	In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. 	Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. 	If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. 	If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. 	The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. 	Evidence of objective background facts will include:

(i)	evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii)	notorious facts of which knowledge is to be presumed; and

(iii)	evidence of matters in common contemplation and constituting a common assumption.

13. 	The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. 	Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. 	In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.

[21]	The PSAA allows for a decision to transfer a police officer on a basis prescribed by regulation. Where this occurs, the decision need not involve the inviting of applications and selection on the basis of the merit of the applicants.

[22]	The Regulation provides that the basis for a transfer of an officer per s 5.2(3) of the PSAA is prescribed by the Certified Agreement. 

[23]	The question for Arbitration also requires that I give consideration to the Lateral Transfer Policy and I do so below. However, the Policy represents a guideline or supporting document and clearly refers back to the relevant clauses of the Agreement. 

[24]	The relevant sections of the Certified Agreement are outlined above.  Essentially, to answer the question for arbitration, consideration must be given to the requirements of the Certified Agreement and whether the positions were properly able to be filled by Lateral Transfer.

Framing the question for arbitration

[25]	At the outset, I want to clarify that the question for arbitration does not require me to examine or make any decisions regarding the decision of the panel to appoint the successful applicants to position/s TL179/20.  Therefore, while I note the specific concerns the Applicant says led her to seek a review of the decision, I do not find it necessary to outline those specific submissions in these reasons for decision. 

[26]	I also note that the Applicant sought an internal review of the decision, the grievance process followed and the outcome was that the lateral transfer appointments were not reviewable as they were conducted through a closed merit process. The Applicant provided detail about the process and the correspondence she received throughout, but I do not find that material necessary to include in these reasons for decision.  It is sufficient to note that Ms Whitaker is aggrieved by the decision to fill the positions by lateral transfer, the process by which the opportunity was promoted, the selection of candidates for transfer, and the resulting outcome that the process was not reviewable as it was conducted on a closed merit basis.

[27]	The question before me is confined to whether TL1790/20 was properly able to be filled by lateral transfer. I am not asked to consider the reasoning behind the decision that these positions would be filled through the lateral transfer process.  Rather, I am being asked whether the decision to fill the positions through the lateral transfer process and the ensuing actions undertaken to fill the positions complied with the relevant provisions of the Act, the Policy and the Certified Agreement.  

[28]	I also wish to be clear that while, at various times, the Applicant speaks more broadly about the concerns she has with the lateral transfer process being used for a number of positions, I am asked here only to consider the two positions advertised under TL1790/20. I agree with the observation of the Respondent's representative, Ms Howell, at the hearing when she said, 'it really is just about those particular positions and it is not a broad policy argument about what the service should or shouldn't do with regards to how they fill those positions it's about whether the service complied with the policy and legislative framework with regard to those positions'. An arbitration of a dispute is not a policymaking exercise. 

[29]	I will structure this decision by providing an outline of each parties' position and then by considering the specific submissions made in support of their respective positions. 

The Applicant's position

[30]	The Applicant says that the following factors are indicative of why Part Six of the Certified Agreement was incorrectly used for the advertised position of TL179/20:

a.	The position was not filled from a pool of employees, rather officers applied to the vacant position, which was gazetted.

b.	The selection process was said to have been decided on a merit basis.

c.	Other than the position being advertised as transfer at level (TL) it was clear in subsequent correspondence that the position was more aptly categorised as a Vacancy Reference Number (VRN).

d.	Applications for the vacant position were assessed by a panel of three CIB members. The matter was only put through to the Transfer Advisory Committee (TAC) at the finalisation of the process, which is the same process used for standard vacancies. 

[31]	Ms Whitaker filed an Affidavit on 16 February 2022.  At the hearing on 25 March 2022, the Respondent did not cross-examine Ms Whitaker.  The Affidavit was entered into evidence as Exhibit 1. The relevant parts of Ms Whitaker's evidence have been considered alongside her submissions below.  Exhibited to the Affidavit were a range of documents and those are also referred to below where relevant. 

[32]	Ms Whitaker says that she originally thought the Policy needed to be changed to ensure fairness. However, she says that she has come to the view that the Certified Agreement outlines the process very well and that the Respondent is misusing the policy. The Applicant says that while the process has operated this way for approximately 15 years, it does not make it right.

The Respondent's position

[33]	The Respondent submits that in using the lateral transfer process to fill the relevant positions, it acted in accordance with the requirements of the Act, the Regulation, the Agreement, the Policy and the Detective Training and Appointment Policy. 

[34]	The Respondent says that the lateral transfer process was applied in accordance with the authority of the Commissioner (or delegate) to make a decision under the PSAA to fill a position on transfer using Part 6 of the Agreement without the need to undertake an open merit process. The Respondent says that the transfer at level process provides an efficient and fair process for determining suitable applicants. 

Vacancy TL179/20: the positions 

[35]	The Applicant says that she applied for the above position when it was advertised in the Police Gazette dated 7 August 2020 in the 'Transfer at Level Opportunities' section of the Gazette.  The vacancy reference number was TL179/20.  

[36]	The Respondent says that the positions are Constable/Senior Constable Detective/Plain Clothes Investigator positions, attached to South Eastern Region, QPS.  The positions were filled via a lateral transfer process pursuant to Part Six of the Certified Agreement. The transfer at level opportunity was open to Constables and Senior Constables and was promoted in the QPS Gazette on 7 August 2020.

[37]	The Applicant contends that the vacancies arose as a result of the departure of two Senior Constables from the positions and not due to one of the compelling grounds set out at cl 65.  The Applicant contends that the positions are vacancies as per cl 14 of the Certified Agreement and as such, these positions should be advertised in the vacancy section with a VRN and based on open merit. 

[38]	The Respondent says that a lateral transfer is the permanent placement of someone into a vacancy. The Respondent further submits that whether a position is promoted on open merit or filled as a lateral transfer, it still needs to be vacant in order for someone to be appointed or transferred into it.

[39]	In any case, I note that cl 14 of the Certified Agreement (see [10]) envisages situations where 'vacancies' will not be advertised. Specifically, cl 14(2) provides that 'vacancies filled through the Lateral Transfer provisions (Part Six) of this Agreement are not required to be advertised under this clause.' There is no requirement for all 'vacant' positions to be advertised. 

Were the roles able to be identified as Transfer at Level Opportunities or were they effectively promotional positions?

[40]	The Respondent says that the positions are classified as Constable/Senior Constable because cl 13(2) of the Certified Agreement provides for officers to progress from the rank of Constable to Senior Constable and this has been the case since 2007.  The exception to positions being classified as Constable/Senior Constable is where a position is specifically designated as a Senior Constable position per cl 13(2)(e ) of the Agreement.  As such, the Respondent says that although Constable and Senior Constable are separate ranks under the Regulation, placement in a Constable/Senior Constable position is not a promotional opportunity, but rather it is a transfer at level.  Officers are transferred into a Constable/Senior Constable position at the rank they have achieved, being either Constable or Senior Constable. 

[41]	While the Respondent points out that the positions are to be transfers 'at level', the Applicant says that the positions are sought after and are looked at as promotions. While an appointee remains at the same rank, they obtain the Plain-Clothes Constable/Senior Constable title.  The position attracts two permanent allowances and therefore increases the annual wage. There is also the opportunity to commence courses and train to obtain a detective appointment that is unavailable to general duties officers. 

[42]	The Respondent notes the Applicant's submission that the positions are sought after and looked at as promotions but submits that they remain Constable/Senior Constable positions.  The Officers selected were not promoted, rather they were transferred at level based on the Constable and Senior Constable rank they had attained.  The Respondent notes that there are many positions that attract allowances depending on the work  performed but this does not make the roles promotional opportunities. 

[43]	I do not accept the Applicant's argument that for all intents and purposes these roles were promotional positions.  It is clear that when one expresses interest in the transfer at level opportunity, they are at the Constable/Senior Constable level.  If, following the Transfer Advisory Committee application process and/or a closed merit process, an individual is transferred to the position, they remain at a Constable/Senior Constable level. I understand that there are any number of positions or locations in the QPS, and indeed across the public service, which may be seen as more attractive or prestigious than other roles at level or may involve access to particular professional development or on-the-job experience, however it is incorrect to suggest that such positions are promotional.  Arguments about the access to detective training and potentially a faster career progression may be persuasive in a discussion about revising the types of roles that may be filled through the lateral transfer or transfer at level process, but they are not relevant to the question before me, which is whether QPS complied with the existing requirements in filling the positions through lateral transfer. 

The vacancies were notified as Transfer at Level which is an operational factor listed at 65(2) of the Certified Agreement

[44]	The Respondent submits that the operational factors listed in Part Six, cl 65(2) of the Agreement which may be used by management or officers includes Expressions of Interest/Transfer at Level Opportunities. It was this operational factor that the Respondent used when it made the decision to fill the positions on lateral transfer and that per cl 65(2), the employees were selected on the basis of a closed merit process (the closed merit process will be discussed below).  The Respondent says that:

•	Notice was given to officers that they could apply for the positions by listing them as a Transfer at Level opportunity in the QPS Gazette on 7 August 2020;

•	This established a relevant pool of employees from which to select via closed merit;

•	The listing in the QPS Gazette clearly stated appointments to these vacancies would be by lateral transfer;

•	The positions appeared in the Gazette separately to positions that are to be filled on 'open merit' (such positions are issued with a VRN and not a TL number);

•	Applicants were given and required to quote the transfer at level number; and

•	A closed merit process was undertaken to select officers for appointment.

[45]	With reference to the screenshot of the relevant page of the Gazette promoting TL179, the Respondent says that it clearly shows that the positions were promoted as lateral transfers and listed as transfer at level opportunities.  The notes page refers to transfer at level opportunities and states that appointments will be made via lateral transfer.

[46]	A 'transfer at level' appears to operate differently from the other operational factors in that the employer initiates the process by identifying the position/s which will be made available for employees to express an interest to transfer into. 

[47]	While it seems trite to state it here, 'Expressions of Interest/Transfer at Level Opportunities' are clearly one of the operational factors listed in cl 65 of the Certified Agreement and therefore the positions, once identified as Transfer at Level Opportunities, fell within the Lateral Transfer regime set out in Part Six.

By listing the Transfer at Level opportunities in the Gazette, was the QPS 'advertising' the positions?

[48]	The Applicant says that the wording of cl 65(2) of the Certified Agreement is clear and unambiguous in stating that filling a position by Lateral Transfer involves selecting an employee on the basis of closed merit. It does not involve advertising the position to create a wider pool of employees.

[49]	The Applicant says that the advertisement made it clear that merit principles applied but that it remained silent as to whether it would be on the basis of closed or open merit.  The Applicant says that as soon as the position was advertised, it was incumbent on the Respondent to comply with the open merit principles outlined in s 5.2(2)(a) of the Act because they were no longer operating within the definition of closed merit.  The Applicant contends that when applications were invited for the vacant position, as opposed to selecting an employee from a closed pool of employees who had expressed an interest in transferring to a position, the open merit principles were enlivened.

[50]	The Applicant says that 'not advertised' is in both the definition of closed merit but also in the definition of lateral transfer, making it clear that lateral transfer positions are not advertised.  The Applicant says that the QPS advertises the positions in the Gazette to the entire QPS, not a relevant pool and that it has been doing that since before the lateral transfer system was introduced. 

[51]	The Applicant says that 'closed merit' has to be a 'relevant pool of employees that cannot be obtained by advertising the position' and says that by publishing the positions in the Gazette, the Respondent has essentially advertised the position to create a pool of employees. The Applicant says that the definition of 'closed merit' 'in a way…says if you are going to use this lateral transfer provision, you're not going to have the benefit of being able to advertise to the whole of QPS.  It's a relevant pool of employees.'  

[52]	With reference to the definition at cl 10(4) of the Agreement, the Respondent says that closed merit is a process of selection where the vacancy is 'not advertised on open merit' but more than one person has been identified as potential transferees (see above at [12]). The Respondent submits that consistent with the definition of closed merit, the positions were not advertised on 'open merit', but were advertised or promoted in the Gazette as a means of establishing a relevant pool of employees from which to select officers for transfer based on their skills and abilities for a closed merit process. The Respondent says that the positions were not advertised as promotional opportunities and the positions were open to transfer on rank. 

[53]	The Respondent says that placing a notice in the Gazette that a position is available as a Transfer at Level opportunity does not mean that it has been 'advertised' in the same sense required for positions filled by open merit processes.  The Respondent says that placing transfer at level opportunities in the QPS Gazette is an effective way of informing employees of the opportunity.

[54]	With regard to the Respondent's submission that advertising or promoting the positions in the Gazette is an effective way of informing employees of an opportunity, the Applicant says that a QPS email would also be an alternative way to contact the entire QPS or relevant pool. The Applicant contends that this strategy keeps with the requirement for the role to be unadvertised, as well as the definitions of 'closed merit and lateral transfer'. Further, the Applicant says that the email process is also how an expression of interest is conducted.  

[55]	In the matter of Connie & Ors v James Patrick O'Sullivan ('Connie'), White J discussed the 'non-advertised' nature of lateral transfers and the actions of the QPS in notifying the availability of those positions in the Queensland Police Gazette and said:

[12] 	The applicants must be taken to be familiar with the Industrial Agreement which determined that lateral transfer positions were to be non-advertised positions in the sense of not attracting the operation of s 5.2(2)(a) of the Act. It is not inconsistent with the "non-advertised" nature of lateral transfers for management to make known its intention, when it decides for operational reasons that transfers should take place, by notification in the Queensland Police Gazette.  Clause 1.3 of the Industrial Agreement envisages that on occasion more than one person might be identified as a potential transferee. When this occurs "closed merit" selection is applied.  That section is defined as

"A process of selection used in a transfer situation where the vacancy is not advertised, but more than one person has been identified as potential transferees. Thus, merit selection is applied within the closed pool of employees on the same rank wishing to transfer, rather than within a wider pool which would be created by advertising the vacancy."

[13] 	An effective way of informing an employee who may be interested is by inviting expressions of interest via the Gazette.  By doing so there has been no departure from the procedures required by reg 4.2A and the Industrial Agreement. 

While Connie was decided in 2000 and addressed the 1993 Industrial Agreement, there is nothing new in the facts of this matter that should displace White J's finding that inviting expressions of interest via the Gazette is an effective way of informing an employee who may be interested that there is a transfer at level opportunity available.   The evidence demonstrates that the positions were clearly listed as Transfer at Level or Lateral Transfer opportunities.  

[56]	The Applicant is correct in pointing out that email is also an effective way to send a message to many people regarding an expression of interest or transfer at level opportunity.  Indeed, there are any number of ways that an employer may communicate with employees.  The Gazette is one of them. 

[57]	The provision of information about a transfer at level opportunity will naturally invite those interested to apply for the opportunity. Upon applying, those interested become the 'closed pool of employees at the same rank' for the purposes of the closed merit process. 

The closed merit process

[58]	Part of the Applicant's argument is that because the closed merit process: utilised the merit standard; involved a panel assessing the merit of those who expressed interest; and by way of promotion in the Gazette cast a wide net to form a pool of candidates, it was akin to an open merit process and the use of lateral transfer to fill the position enabled the Respondent to avoid a transparent review process. The Applicant says that in applying for the role she was requested to fill out a QP0073 'Application for advertised position', not QP0031 'Application for Transfer'.  Ms Whitaker says that she was also requested to submit a two-page submission addressing the key selection criteria.  She says that in essence, she was applying for the position on the basis of merit and it should have been based on open merit. She says it was not a closed pool.

[59]	The Applicant says that Ms Whitaker received an email stating that there were 26 applicants for the position and the procedures would be in accordance with the 'Merit Standard Selection', advised that a panel had been convened and who those panel members were, and told that interviews of shortlisted applicants, if required, would occur later.  The Applicant received a further email on 26 October 2020 stating that the selection process had been completed and that two applicants had been successful with one person being selected as a reserve.

[60]	The Respondent says that the PSAA, the Regulation and the Agreement, provide that the Respondent may decide to transfer a non-commissioned police officer using the provisions of the Agreement and this decision to transfer need not involve inviting applications and selection on the basis of open merit. To that end, the Respondent says that the specific words used are 'need not' rather than 'must not'. The Respondent says that the PSAA and the regulations do not exclude the use of merit in the lateral transfer process, but the Respondent is not required to apply the particular procedures set out at section 5.2(2)(a) of the PSAA.  The Agreement provides for a closed merit process for lateral transfers such as transfers at level. I also note that with regard to the lateral transfer application process, cl 67(3) states that 'Closed selection may be used in conjunction with operational factors if together, they provide a more appropriate basis for selecting, from employees of the same rank, an employee to transfer into the position'.

[61]	The Respondent says that the definition of 'closed merit' at cl 10(4) of the Agreement provides for the assessment of an officer's skills and abilities.  The Respondent says it is simply not 'required' to or 'need not' comply with the particular merit provisions at s 5.2(2)(a) of the PSAA when utilising the lateral transfer provisions to fill positions.

[62]	It seems to me that the Respondent was working within the process available under the Agreement and that while 'transfer at level' remains one of the 'operational factors' enabled under cl 65(2) of the Agreement, it is open to the Respondent to initiate transfer at level opportunities and create a closed merit pool by way of promoting the transfer at level opportunity.  A closed merit process does not require the Respondent to conduct a process akin to the open merit process, but it does not preclude the use of the merit standard or any existing documents used by the Respondent when conducting a merit process.  In fact, it would seem to make sense that if there are documents available that may assist in running a closed merit process, those documents can be used.

Transfer Advisory Committee

[63]	The Applicant says that if the position was being filled as a lateral transfer, senior management has breached the Certified Agreement by failing to follow the process and not presenting a transfer application to the TAC for consideration. The Applicant says that cl 67(1)(c) requires that an application under one of the 13 operational factors, whether initiated by the service or the officer, must be considered by the TAC. If the TAC supports the transfer application, the officer is placed on a waiting list managed by Human Resources to get their preferred location. 

[64]	Ms Whitaker explains the process as she understands it and says that the TAC transfer board did not consider her 'application for advertised position', rather, the application was considered by a panel which was completely separate from the TAC. It appears that the Applicant was of the view that the TAC should have considered the applications for the closed merit process.

[65]	At the hearing, the Respondent made oral submissions regarding the Transfer Advisory Committee as it said that there appeared to be some misunderstanding of the role of the committee in the Applicant's written submissions.  The Respondent refutes the Applicant's claim that part 6 of the Certified Agreement was incorrectly used because panel members from the CIB were used for the closed merit process and not the committee.  The Respondent says that the TAC committee was established under cl 66 of the Agreement, and the role of the TAC is clearly set out in the Agreement.

[66]	The Respondent submits that it is not the role of the TAC to undertake closed merit selection processes. Instead, the Respondent says that the role of the TAC is to 'support employees out of their current location and not into particular positions'.   According to cl 66(3) of the Agreement, the Committee identifies whether an officer meets one of the operational factors required for lateral transfer and advises the Commissioner or their delegate accordingly.

[67]	The Respondent says that cl 65(2) provides for the transfer at level opportunity and that by that process, the Commissioner or their delegate selects an employee from the relevant pool of employees based on closed merit. The TAC identifies whether an officer meets one of the operational factors required for lateral transfer and advises the Commissioner (or delegate) accordingly.

[68]	Therefore, it is not the Committee who selects the employee from the pool of employees.  The Respondent says that it was appropriate for the region to conduct the closed merit process and put the subsequent lateral transfers to the Committee for their consideration and advise the Committee that the operational factor the individuals will be transferred under is 'transfer at level opportunities'. 

[69]	As I have established above, it was appropriate for a closed merit process to be undertaken and for a panel to be established to undertake the process.  The role of the TAC is to advise the Commissioner that the lateral transfer is being made under an appropriate operational factor.  In this case, once the closed merit process resulted in the recommendation that the two positions be filled by the chosen individuals, the lateral transfers were sent to the Committee for consideration.  It appears that because the selection process had been undertaken, there was no requirement for the TAC to undertake its own selection process.  What it needed to do was note and endorse the transfers and advise the Commissioner of the outcome. 

[70]	I think it is also worth noting that the Agreement provides that 'In addition to providing advice to the Commissioner on lateral transfers, the Committee will inform itself of relevant issues affecting the transfer of employees generally throughout the Service and provide appropriate advice accordingly to the Commissioner with a view to resolution of the issue'.  It would seem that if the TAC had a concern with the way that positions were being identified to be filled as transfer at level or lateral transfer, there is the capacity for the Committee to discuss the matter and provide advice to the Commissioner resulting from one of its meetings which happen 'fortnightly or as required'. 

[71]	I cannot find any issue with the role the TAC played with regard to TL197/20.

The background and purpose of the lateral transfer facility

[72]	The Applicant says that the vacancy clearly did not meet the requirements outlined under the Transfer at Level provisions and this is particularly the case when the purpose of the Lateral Transfer mechanism is considered. Further, the Applicant says that this case demonstrates the persistent problems that are arising from the use of the Lateral Transfer provisions, and how they are being interpreted by the Respondent.

[73]	The Applicant says that the lateral transfer facility is not intended as a substitute for or means of avoiding the open merit system for filling vacant positions, rather its intention is to provide a mechanism to permit the transfer of members with compelling grounds at their substantive ranks. 

[74]	The Applicant submits that in the first three months of 2022, over 160 positions have been identified as lateral transfers and so the positions being considered in this dispute are not isolated incidents.  It is a systematic practice to use lateral transfer.

[75]	Essentially, the Applicant submits that the positions were listed as lateral transfers under cl 65 of the Agreement.  Clause 65(2) was relied upon and it is defined as 'a situation where the commissioner selects an employee from a relevant pool of employees on the basis of closed merit'.  Ms Whitaker says that it is accepted that the industrial instrument 'is given power to basically include in their terms which bypass the open merit system…and that there isn't any restrictions on when they can do that…'  However, the Applicant contends that the Lateral Transfer Policy qualifies the power and that the power is also 'confined somewhat' by the definition of 'closed merit' and 'lateral transfer' in the definition section of the Agreement.

[76]	The Applicant says that in filling positions and using the lateral transfer provisions, one of the operational requirements set out at cl 65(2) had to be met. The Applicant contends that if the decision-maker did not have to consider the policy, 'it would essentially be an unfettered discretion.  They could literally fill all positions through…cl 65(2) and there would be no limitation on their ability to do that, but in our submission it is restricted by the policy and the definition of "closed merit"'.

[77]	The Applicant says that the PSAA has, since its inception, included the substantive requirement for the appointment of police officer positions in the Queensland Police Service to be based on merit. 

[78]	The Applicant says that in 1993, the Police Service Administration Amendment Bill 1993 (the Bill) was passed by Parliament and it provided a mechanism whereby officers could be transferred to positions within the service which were not on the basis of merit and were only reviewable by the officer subject to the transfer.  Pursuant to s 5.2(3) of the PSAA, if a decision is made to transfer a police officer on a basis prescribed by regulation the decision need not involve the inviting and selection of applicants on the basis of merit.

[79]	The Applicant submits that the Explanatory Notes for the Bill made clear the purpose of the amendment and foreshadowed the corresponding amendment to the Police Service Administration Regulation 1990 (the Regulation) to provide an exception to the requirements for merit.  The Regulation created a 'prescribed basis' which would be a basis specified in an industrial agreement between the Commissioner of Police and the Police Union. The Applicant says that it went on to describe that the relevant industrial agreement will effectively provide the basis for a lateral transfer, which will be a response to one or more 'operational factors', namely: organisation restructuring; management of staffing issues; health and compassionate grounds; service in isolated or difficult postings; redeployment to/from surplus; redeployment after extended leave or return from secondment; and assistance in meeting Equal Opportunity requirements.

[80]	The Applicant points to the following excerpt of the Explanatory Note:

The industrial agreement also provides for the establishment of a Transfer Advisory Committee comprising representatives of the Service and the police unions. Applications for transfers to 'non-advertised' positions, (whether initiated by management or the individual) will be considered by the Committee.  The Committee will then provide the Commissioner with advice regarding the relative merits of each application. Where appropriate the positions may then be filled by the transfer of an officer without the position being advertised as vacant. In all other circumstances the vacant position will be advertised.

[81]	The Applicant also makes reference to the Second Reading Speech on 10 November 1993 and 2 December 1993 for the Bill and says that these also outline the purpose of the amendments.  The Applicant says that the Hansard refers to a review of the Queensland Police Service undertaken by the Public Sector Management Commission and says that the review made several recommendations in light of the difficulties and perceived inability of the Commissioner to transfer officers in accordance with the needs of the service and the community.  The Applicant says that the impetus behind the changes was the difficulties in rotating officers out of isolated postings, which was permitted through the removal of the requirement of merit in respect of appointments to non-advertised positions by way of transfer.  

[82]	The Applicant says that a review of the Explanatory notes and excerpts from Hansard demonstrate that the exception to the open merit system was always meant to be limited, and for utilisation in a narrow set of circumstances.  Lateral transfers were to be used for  'very limited circumstances'. By way of example, Ms Whitaker says that: 

…it really does talk to situations where an officer might be in a remote location.  It's a fair and equitable thing for that person to transfer into another position where they have more opportunity and to make everything open merit would basically prejudice those officers.

[83]	The Applicant submits that as early as 24 March 1995, Constable Vacancies CI (CIB) positions were advertised in the Gazette under 'Constable vacancies' stating 'Appointments will be by lateral transfer' and that this was bypassing the open merit system and misusing the lateral transfer mechanism.   On 3 October 1997, a new 'Transfer at level' section was added to the Gazette advertising 'Senior Constable/Constable Vacancies' and requested a QP31 and a brief resume.  The Applicant says that there was no 'operational requirement' for this.

The Lateral Transfer Policy

[84]	With reference to the Lateral Transfer Policy, the Applicant says that it was presumably put in place to ensure that the Lateral Transfer procedure is utilised only in limited circumstances, as per the intention of Parliament.

[85]	The Lateral Transfer Policy does not include the words 'limited circumstances', however the words appear in cl 64(4) of the Certified Agreement.  There is no specific definition as to what constitutes 'limited circumstances', however, the Agreement goes on to list the operational factors upon which a lateral transfer may occur and it seems to me that these operational factors represent the 'limited circumstances'.  The Respondent is a large employer and I imagine there are a wide range of Constable/Senior Constable roles which become vacant for whatever reason from time to time in various locations around the State and work areas of the QPS.  It seems to me that to simply consider the term 'limited' to mean a particular number or percentage of positions filled through lateral transfer would undermine the Agreement which appears to aim to provide flexibility in particular circumstances. 

[86]	The Respondent submits that it acted in accordance with the Lateral Transfer Policy (2014/12) in using the lateral transfer process to fill the positions.  The Respondent says that the source of authority for lateral transfers comes from the PSAA and then flowing from that, the PSAR and it is pursuant to that regulation that the Certified Agreement is created between the unions and the service, and that Agreement sets out the lateral transfer process.  The Policy supports those materials and states that it provides 'general guidelines and relevant source references' with the principles governing the lateral transfers contained in the Certified Agreement (noting that the reference to the Certified Agreement contained in the Policy needs to be updated).

[87]	The Respondent says that the Lateral Transfer Policy states that the grounds for transfer are those set out in the Agreement and include transfer at level (cl 65(2)). The Respondent says that the use of the lateral transfer provisions to fill the positions was not a means to avoid the open merit system and therefore, was not inconsistent with the Lateral Transfer Policy.

[88]	It is clear that the Policy has not been written to provide a detailed unpacking of the Lateral Transfer process.  The policy specifically states that the principles governing lateral transfers for police officers are contained in the Certified Agreement. I note that the Policy states that the intention of the lateral transfer facility is to provide a mechanism to permit the transfer of members with compelling grounds at their substantive rank.  This supports the Applicant's contention that the lateral transfer facility is to be used in limited circumstances. The policy goes on to address 'officer initiated applications' and the operational factors outlined in the Certified Agreement. The policy does not address QPS initiated transfers in any depth except for noting the lateral transfers will not be used as a disciplinary sanction and that transfer may occur as a risk mitigation strategy.  I do not know why the Policy does not go into further detail about the different operational bases for transfer or discuss transfers at level, however it may be that those drafting the policy saw no need, as the Agreement provides a detailed outline of the lateral transfer facility.

[89]	In any case, the basis for lateral transfers is the Certified Agreement.  Any change to the lateral transfer facility would need to be negotiated by the parties and included in the Certified Agreement.  The Lateral Transfer Policy can describe the process and provide guidance on its implementation, but it cannot impose restrictions or changes to the procedure agreed between the parties.  In the absence of any further definition of the term 'limited circumstances', I find that the operational factors listed represent those limited circumstances. It is for the TAC to intervene and inform the Commissioner if there is a view that a transfer at level does not satisfy the operational factor/s it is being recommended under.

Use of Extrinsic Materials

[90]	The Applicant submits that the decision in AMWU v Berri (see above at [20]) sets out the relevant principles for construing an enterprise agreement.  

[91]	The Applicant says that according to those principles, where meaning is unclear, resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context may appear after considering the agreement as a whole and the legislative context under which the agreement was made. 

[92]	The Applicant submits that the wording of the Agreement is clear and unambiguous and supports the Applicant's contention that the position was wrongly advertised.  The Applicant submits that in the event the Commission finds that there is ambiguity, the legislative context makes clear that the purpose of the relevant provisions was not to allow the lateral transfer provisions within the Agreement to extend to advertised positions such as TL179/20, and was not intended to subvert the open-merit principles.

[93]	With reference to the Applicant's submissions addressing the Explanatory Notes and the Parliamentary Debates regarding the Bill, the Respondent says that these materials go to the formal establishment of the lateral transfer arrangements in the PSAA and that the materials are not relevant for the question for arbitration. 

[94]	The Respondent says that the question for arbitration is whether the Respondent acted in accordance with the PSAA, the Regulations, the Lateral Transfer Policy and the Detective Training and Appointment Policy in filling the positions via lateral transfer.  The Respondent submits that the provisions in the PSAA and the Regulation applicable to lateral transfers are not ambiguous or obscure, and the ordinary meaning of the applicable provisions do not lead to a result that is manifestly absurd or unreasonable.

[95]	The Respondent notes that the Applicant also states that the legislation is clear in terms of its requirements and that the language in the Act and Regulation is a matter that has been raised by the Applicant. The Respondent says that there is no basis for drawing on extrinsic materials to aid in the interpretation of the PSAA or the Agreement. 

[96]	In any case, the Respondent says that should the extrinsic material be considered, the Explanatory Note to the PSAA and the Regulations in 1993 clarifies the Commissioner's general transfer power.  The Respondent says that the changes were in part to 'enhance organisational efficiency through effective deployment of staff'. Further, the Explanatory Note states that transfers made 'on a basis prescribed by regulation' will not be subject to the requirements for the inviting of applications and selection on the basis of merit.  Moreover, the Explanatory Note outlines that the 'prescribed basis' is that specified in an industrial agreement between the Commissioner, Queensland Police Union of Employees, and the Queensland Police Officers' Union of Employees.

[97]	The Respondent also says that the 1993 Bill referred to a previous Certified Agreement and the current Certified Agreement was the basis for the process applied in TL179/20.

Conclusion

[98]	The Respondent says that this dispute appears to be about whether the applicant agrees with what the Certified Agreement contains and allows for rather than whether the Respondent has complied with the Agreement. Having considered all of the material before me and reading the legislation, the Agreement and the documents exhibited by the Applicant, I agree. 

[99]	I understand that Ms Whitaker believes that there is a serious matter of fairness at play and that there is an issue with regard to an inability to seek review of the outcome of a closed merit selection process, particularly in circumstances where it appears that many positions are being filled through lateral transfers.  However, the question before me is not 'which positions should be chosen for lateral transfer or transfer at level?' or 'how many positions should be made available for lateral transfer or transfer at level?' or 'should closed merit lateral transfer selection processes be reviewable?'.  The question before me is much narrower.  

[100]	I have reviewed all of the material provided to me by the parties and  I consider that the language of the legislation and regulation are clear and lead the reader to Part Six of the Certified Agreement.  Part Six of the Certified Agreement is also clear and lists transfers at level as an operational factor enabling a lateral transfer. The Commissioner is able to determine that particular positions will be made available as transfer at level opportunities. The framework created by the Certified Agreement, the legislation and the regulation involve the capacity to inform employees of the availability of transfer at level opportunities and to employ a closed merit process to consider which employees should receive the transfer where the number in the closed pool exceeds the number of positions available. The Agreement includes the role of the TAC in confirming that the proposed transfer falls under one of the operational factors enabling a lateral transfer and advising the Commissioner of this.  In order to answer the question, I do not have need to refer to the explanatory notes or speeches in support of the Bill. The provisions are clear and unambiguous.

[101]	 To conclude, the question for arbitration was:

1.	Did the State of Queensland (Queensland Police Service) act in accordance with the provisions of the Police Service Administration Act 1990 (Qld), the Police Service Administration Regulations 1990 (Qld), the Queensland Police Service Certified Agreement 2019 (EB9), the QPS Lateral Transfer Policy, and the Detective Training and Appointment Policy in using the lateral transfer process to fill positions 1-906461 and 1-922363?

[102]	 For the foregoing reasons, the answer to the question for arbitration is: Yes.

[103]	I make the following order:

In answer to the question for arbitration, namely: Did the State of Queensland (Queensland Police Service) act in accordance with the provisions of the Police Service Administration Act 1990 (Qld), the Police Service Administration Regulations 1990 (Qld), the Queensland Police Service Certified Agreement 2019 (EB9), the QPS Lateral Transfer Policy, and the Detective Training and Appointment Policy in using the lateral transfer process to fill positions 1-906461 and 1-922363?

The answer is: 'Yes.'