COMMISSIONER OF POLICE v NEW ZEALAND POLICE ASSOCIATION INCORPORATED [2022] NZCA 342

COMMISSIONER OF POLICE v NEW ZEALAND POLICE ASSOCIATION INCORPORATED [2022] NZCA342 [28 July 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA116/2021[2022] NZCA 342BETWEEN COMMISSIONER OF POLICEAppellantAND NEW ZEALAND POLICE ASSOCIATIONINCORPORATEDRespondentHearing: 5 July 2022Court: French, Clifford and Dobson JJCounsel: P J Radich QC, H P Kynaston and L E S G Roberston forAppellantS L Hornsby-Geluk and B J Locke for RespondentJudgment: 28 July 2022 at 2.30 pmJUDGMENT OF THE COURTA The appeal is allowed. The question of law submitted for determinationby this Court, namely:Are generic rotational positions, whether agreed between Police andemployees or otherwise, and whether through an expression ofinterest process or otherwise, able to be established only inaccordance with s 65(1)(d)(v) or can they be established under s 18of the Policing Act 2008?Is answered as follows:Section 65 of the Policing Act 2008 is not a provision that is contraryto the powers of the Commissioner of Police as an employer, asprovided for in s 18(4) of that Act.B We make no award of costs.____________________________________________________________________REASONS OF THE COURT(Given by Dobson J)[1] The appellant (the Commissioner) and the respondent (the Association) havehad a relatively long-standing dispute over the scope of the Commissioner's obligationas employer, to pay employees reimbursement for motor vehicle expenses incurredwhen travel for work purposes involves greater travel costs for employees than whenthey are commuting from their homes to their initial place of work (MVR).[2] After a ruling from the Employment Relations Authority on disputes raisedbetween the parties on this issue1 the Commissioner commenced a challenge in theEmployment Court on a number of issues of interpretation that had arisen in the courseof the dispute. In February 2021 the Employment Court issued a reserved decisionruling on the questions posed for it, essentially in favour of the Association.2[3] This Court is precluded from hearing appeals from the Employment Court onquestions of law concerning the construction of individual or collective employmentagreements, all other questions of law requiring leave.3 Although the EmploymentCourt judgment focussed primarily on the scope of the Commissioner's obligations topay MVR pursuant to the relevant provision in the collective employment agreement,the reasoning in the judgment included a finding on the scope of the power of theCommissioner as employer to employ personnel on terms stipulating that there wouldbe generic rotation of their positions with work of a variety of types likely to beundertaken at a number of locations. As we explain below, the judgment interpretedprovisions in the Policing Act 2008 (PA) as limiting the circumstances in which theCommissioner could contract with employees to rotate their duties in this way.1 New Zealand Police Association Inc v Commissioner of New Zealand Police [2019] NZERA 505.2 Commissioner of Police v New Zealand Police Assoc Inc [2021] NZEmpC 8, [2021] ERNZ 21[Employment Court judgment].3 Employment Relations Act 2000, s 214(1).[4] The Commissioner sought leave to appeal on a question of law raised by theEmployment Court's interpretation of the relevant provisions in the PA.The Commissioner sought to argue that s 18, a more general provision in the PAaddressing the Commissioner's powers as an employer, overrode the specificexception in s 65 from usual public sector employment processes that provide forrotation of existing employees.[5] Over the Association's opposition this Court granted leave to appeal on aquestion of law on interpretation of the PA posed in the following terms:4Are generic rotational positions, whether agreed between Police andemployees or otherwise, and whether through an expression of interest processor otherwise, able to be established only in accordance with s 65(1)(d)(v) orcan they be established under s 18 of the Policing Act 2008?Context in which the question of interpretation arises[6] For many years the terms of collective agreements for Police employeeshave included a provision for the Commissioner to reimburse them for MVR.The circumstances generating employees' claims for MVR included those in whichemployees were re-located to a different station than the one at which they worked.[7] In the earlier years in which the MVR applied, relocations of Police employeesthat were likely to trigger claims for such reimbursement were substantially conductedpursuant to the Commissioner's power to do so under s 65 of the PA. That sectionprovides:65 Power to temporarily assign, second, and locate employees andother persons within Police(1) The Commissioner may, subject to any applicable employmentagreement, but without complying with sections 59(1) and 60(1)—(a) assign a Police employee to a temporary position in thePolice:(b) assign a person to a position in the Police:(c) second a Police employee to a position with anotheremployer:4 Commissioner of Police v New Zealand Police Association Inc [2021] NZCA 299 [Leavejudgment].(d) relocate a Police employee—(i) on the graduation of that person from initial recruittraining; or(ii) within the district in which the employee is stationed,and at the employee's existing level of position, tomeet Police requirements, after considering theemployee's circumstances and the merit of allemployees who have indicated an interest in theposition; or(iii) on the return of that person to duty from an overseasassignment, leave without pay, parental leave, orother special leave; or(iv) to fill a vacancy in a temporary internationalassignment, after considering all employees whohave indicated an interest in the position; or(v) in order to rotate an employee within the district inwhich he or she is stationed; or(vi) for substantial welfare or personal reasons:(e) locate a person who is rejoining the Police as an employee.(2) Subsection (3) applies if—(a) the Commissioner assigns a person to a temporary positionunder subsection (1)(a) or assigns a person to a position undersubsection (1)(b) without complying with sections 59(1) and60(1); and(b) the person has occupied that position or been on thatsecondment for a period of at least 14 months.(3) The position occupied, or the secondment, must be considered to havebeen vacated by that person and, subject to any applicableemployment agreement, any further assignment to or secondment ofthat position must be dealt with in compliance with sections 59(1) and60(1).[8] Utilising the procedure under s 65 frees the Commissioner from the obligationto comply with ss 59 and 60 of the PA. Those sections provide:59 Appointments on merit(1) In making an appointment under section 18, the Commissioner mustgive preference to the person who is best suited to the position.(2) This section is subject to sections 64 and 65.60 Obligation to notify vacancies(1) If the Commissioner intends to fill a position that is vacant or is tobecome vacant in the Police, the Commissioner must, whereverpracticable, notify the vacancy or prospective vacancy in a mannersufficient to enable suitably qualified people to apply for the position.(2) This section is subject to sections 64 and 65.[9] Since at least September 2014 the Association has expressed concern to theCommissioner about a change to the practice of rotating employees. This arosebecause appointments were being made for "generic rotational positions" on termswhere the employee may not have an initial place of work stipulated in her or hisconditions of engagement so that on a rotation or relocation to a different location, theemployee would arguably not qualify for MVR. The Commissioner claims to havethe power to employ on these terms in reliance on s 18 which provides:18 Commissioner may appoint Police employees(1) The Commissioner may from time to time appoint the people that theCommissioner thinks necessary for the efficient exercise andperformance of the powers, functions, and duties of the Police.(2) The power conferred by subsection (1) includes power to appointpeople on an acting, temporary, or casual basis or for any period thatthe Commissioner and the employee agree.(3) The Commissioner may assign to a Police employee any level ofposition that the Commissioner considers appropriate.(4) Unless expressly provided to the contrary in this Act, theCommissioner has all of the rights, duties, and powers of an employerin respect of Police employees.[10] The Commissioner's power to employ personnel on such generic rotationalterms became relevant to the Employment Relations Authority determination at theoutset of the present proceedings, and then the appeal to the Employment Court,resulting in the judgment giving rise to the question of law to be considered in thisappeal.[11] The issue between the parties is now much broader than whether theCommissioner is liable to pay MVR to employees whose work is relocated from thepolice station or other facility at which they commenced work. Widespread adoptionof generic rotational terms instead of appointing employees to a specific station hasreal significance for the employment conditions of the employees and affects therelative scope of the Commissioner's powers as employer. Not the least of these is theprospect of the Commissioner being able to avoid compliance with the obligations inss 59 and 60 of the PA.[12] The full import of the transformation in the issue between the parties seemsnot to have been addressed when leave was sought to argue a question of law in thisCourt. Indeed the implications of the extent to which the issue raised by the questionof law had evolved was not squarely addressed in the written submissions of the partieson the appeal.The Employment Court judgment[13] It was argued for the Commissioner in the Employment Court that s 18(4)empowered the Commissioner to negotiate the employment of personnel on any termsthat he or she proposed, provided that those terms were agreed to by the personnelbeing employed, and that the Commissioner's conduct complied with his or herobligations as an employer under Part 4 of the PA.[14] After reviewing some of the provisions in Part 4 of the PA and considering theterms of s 65 in detail, the Judge held that s 65 constituted one of the provisionsreferred to in s 18(4) so that the powers of an employer that the Commissioner wouldotherwise have are constrained by the terms of s 65 when dealing with employees onmatters coming within s 65. The Judge recorded his finding as follows:5[98] The power of appointment or engagement of employees is spelt out inconsiderable detail in the various provisions I have reviewed. Parliament hasdefined the power of appointment with some specificity. I find s 65 is anexample of a provision which falls within the proviso contained in s 18(4).It cannot be construed as allowing the Commissioner to engage employees insome other manner, as he or she might think fit. I do not agree that s 18(4)allows for "generic" rotational positions.[15] The consequence of interpreting the statutory provisions in that way was thatthe Employment Court ruled that any rotation of employees had to comply with thelimits in s 65(1)(d)(v).6 The judgment went on to provide interpretation of provisions5 Employment Court judgment, above n 2.6 At [99].in the collective employment agreement that have no bearing on the question of lawbefore this Court.Submissions on appeal[16] Mr Radich QC submitted for the Commissioner that the Employment Courthad wrongly interpreted ss 18 and 65 of the PA by treating s 65 as an"expressly provided" constraint on the scope of the Commissioner's power as anemployer in s 18(4). Rather, on the Commissioner's approach s 65 was a limitedexception to the obligations that otherwise apply under ss 59 and 60 to requireappointments to be made on merit and, wherever practicable, for vacancies to benotified sufficiently for suitably qualified people to apply for the position. As such,s 65 was not a constraint on the Commissioner's powers as an employer, but rather anexception to the obligations imposed under ss 59 and 60.[17] For the Association, on the narrow question of the meaning of the words usedin s 18(4) and in s 65, Mx Hornsby-Geluk accepted that s 65 did not constitute one ofthe express provisions to the contrary of the power vested in the Commissioner bys 18(4). Rather, s 65 defined an exception to the general obligations imposed on theCommissioner under ss 59 and 60. It accordingly had the effect of freeing theCommissioner from the usual obligations to make appointments on merit and to notifyvacancies, but only in the limited circumstances that were provided for movingexisting employees about within the Police as stipulated in s 65.[18] However, effectively submitting that the Employment Court was right for thewrong reasons, Mx Hornsby-Geluk maintained a submission that s 65 still operated asa constraint on the terms upon which the Commissioner could employ personnel.[19] It was submitted for the Association that all appointments by the Commissionerhad to be to a "position" so that a generic rotational position would be unlawful.Sections 59, 60 and 61 all contemplate employment necessarily being for a position.[20] Further s 65 of the Employment Relations Act 2000 requires every individualemployment agreement to include details such as a description of the work to beperformed by the employee and an indication of where work is to be performed.Arguably the obligations applying under that section of the Employment RelationsAct, and the nature of the employment relationship contemplated under the PArequired the Commissioner to provide more specific details on the engagement of anyemployee than would be reflected in any employment to a generic rotational position.[21] It was evident during argument that the competing positions raised issuesbeyond the question of law for determination on the present appeal. After the limitedscope of the question of law raised on the appeal had been canvassed with counsel forboth parties, Mx Hornsby-Geluk applied for the appeal to be dismissed on the groundthat the question depended upon an illegitimate proposition in that it presumed thelegitimacy of the concept of appointing employees to generic rotational positionswhen that concept is not adequately defined, and the Association challenges thelawfulness of the Commissioner being entitled to employ staff on such terms in anycircumstances.[22] As answers to questions posed by us of Mr Radich had demonstrated, there isno evidence of identifiable parameters on the level of generality of the terms of genericrotational positions. It was submitted for the Association that it was misconceived topursue a determination on the question because of that inadequacy, and the appealought to be dismissed allowing the parties to recast the terms of the issue betweenthem, ideally on an agreed set of test cases.Analysis[23] In this Court's decision granting leave the concept of generic rotationalpositions was defined as follows:7 where Police employees are appointed to positions on the basis that theywill move through different portfolios, work groups and potentially places ofwork on an ongoing basis.[24] An affidavit of Mr Gregory Fleming, an industrial advocate with theAssociation, opposing the grant of leave, focussed primarily on the terms of thecollective agreement and the Association's concern that the Commissioner was7 Leave judgment, above n 4, at [6].breaching those terms in relation to the MVR.8 His reference to the appointment ofemployees into "generic positions" did not suggest a dispute with the scope of genericpositions that might be proposed by the Commissioner.[25] We do not accept Mx Hornsby-Geluk's submission that a lack of adequatedefinition of what comprises generic rotational positions, or a challenge to whetheremployment on any such terms is within the lawful powers of the Commissionershould justify a refusal to answer the relatively narrow issue of statutory interpretationthat is raised by the question of law on which leave was granted.[26] As is conceded for the Association, on the terms of ss 18 and 65 of the PA, thelatter does not constitute an express provision applying to constrain the rights of theCommissioner as an employer that are provided for in s 18(4) of the Act.[27] Instead, s 65 operates at an exception to the obligations otherwise imposed onthe Commissioner under ss 59 and 60. The result is that the Commissioner is free ofthose obligations where temporarily assigning, seconding or relocating employeesunder s 65. The consequence is that whatever other constraints might apply to theotherwise general terms of the Commissioner's power provided in s 18(4) of the PA,the provisions of s 65 are not one of them.[28] It follows that to whatever extent, if any, it is otherwise lawful for theCommissioner to employ staff by appointing them to generic rotational positions, theCommissioner's powers to do so under s 18(4) are not subject to a requirement tocomply with s 65 of the PA.[29] We do not express any view on the submission for the Association that theexistence of the procedure provided for in s 65 should in any event be treated as aconstraint on the Commissioner's powers generally to employ staff on whatever termsmight be agreed. Those submissions extend to arguments that such terms cannot beinvoked as a general practice because that would subvert the statutory purpose of theobligations in ss 59 and 60 and possibly arguments that aggregating such sweepingpowers of redeployment to the Commissioner could in circumstances become8 Affidavit of Gregory John Fleming, sworn 24 March 2021.inconsistent with the Commissioner's statutory obligations of good faith and to be agood employer.9 We note that the obligations in ss 59 and 60 have wider applicationgenerally in state sector employment.[30] As counsel were inclined to agree by the end of the hearing, these significantissues need to be addressed squarely and are not ones that can be treated as comingwithin the question of law as posed. Given the extent to which the issue of law hasmoved the dispute on, we make no order that the matter be remitted to the EmploymentCourt.[31] For the avoidance of doubt we answer the question in the terms we do withoutexpressing any view as to whether employment to generic rotational positions,whatever scope is attributed to that expression, is lawful for the Commissioner.Result[32] We answer the approved question of law, as set out above at [5],as follows:Section 65 of the Policing Act 2008 is not a provision that is contrary to thepowers of the Commissioner of Police as an employer, as provided for ins 18(4) of that Act.In doing so, we allow the appeal.Costs[33] The Commissioner sought costs in the event that the question of law wasanswered in his favour. The Association submitted that costs ought to lie where theyfall and that, if the Association's position was not upheld, it ought not to be liable forcosts given the misconceived terms on which the question of law had now been argued.[34] As the arguments played out, the appeal was appropriately seen as a test case.It appears not to have resolved a significant issue that is likely to require resolution inanother forum. We did not see the form in which the Commissioner pursued a questionof law as disentitling him to costs. However, nor do we consider the Association ought9 See Policing Act 2008, s 58; Public Service Act 2020, ss 73 and 74 and Employment RelationsAct 2000, s 4.to bear liability for costs in what is appropriately seen as a form of test case.Accordingly we make no order as to costs.Solicitors:Buddle Findlay, Wellington for AppellantDundas Street Employment Lawyers, Wellington for Respondent