Australia, March 31 -- New South Wales Land and Environment Court issued text of the following judgementon March 4:

1. This matter concerns the rights of persons who are first appointed on probation as a police officer of the rank of constable ("Probationary Constable") to progress through the scale of rank, grade and salary increments under the Crown Employees (Police Officers - 2021) Award ("the Award") after a delay in the confirmation of their appointment to that rank.

2. The initial appointment of a constable on probation is commonly referred to as an "attestation". The period for which newly appointed or "attested" constables are on probation is ordinarily 12 months. At the end of the 12-month probationary period, successful Probationary Constables are confirmed in the rank of constable and thereupon progress to the next salary increment under the Award - from "Probationary Constable (Level 1)" to "Constable Level 2". The anniversary date of their attestation and confirmation will ordinarily be the same date. After their confirmation, this anniversary date serves as the date on which they progress annually through each of the subsequent salary increments, starting with "Constable Level 3".

3. The issue in dispute arises in circumstances where, for whatever reason, the confirmation of the appointment of a Probationary Constable is delayed after a period of 12 months from their attestation. The applicant, the Police Association of NSW, contends that such a Probationary Constable progresses to the "Constable Level 3" salary increment on the next anniversary of their original attestation date. The respondent, the Commissioner of Police ("the Commissioner"), contends that the constable progresses annually through each of the subsequent salary increments at a later time, that is, on the date of their actual, delayed confirmation.

4. The resolution of this controversy turns on the construction of cl 64.9 of the Award. This clause provides:

64.9 Effect of Any Deferral of Incremental Progression

64.9.1 The period of deferral of an increment will be determined by the period of time taken to achieve the appropriate competency and/or performance standards in accordance with the provisions of this clause.

64.9.2 Where an increment is deferred:

(a) within the first 3 years of employment as a Non-Commissioned Officer, the original increment date is to be retained for future increments;

(b) after the first 3 years of employment as a Non-Commissioned Officer, all future incremental dates are to be varied by the period of deferment.

5. The parties differ as to whether Probationary Constables are entitled to progress to the next incremental level in the manner contemplated for junior police officers by cl 64.9.2(a), or whether, by reason of their probationary status, these constables are sui generis or unique among police officers and do not have this entitlement. The determinative issue boils down to whether a Probationary Constable is "a Non-Commissioned Officer" engaged "within the first 3 years of employment" for the purposes of cl 64.9.2(a). If so, as the Police Association contends, in circumstances where a Probationary Constable's confirmation of appointment and incremental progression to Constable Level 2 is delayed or "deferred", the Award provides that their subsequent progression to "Constable Level 3" and higher is to take place on the anniversary of their attestation date or "original increment date".

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1954ada2b1fa768bcebce2cd)

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