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ACS executive management expects that Customs Officers will sign up to a provision which removes the right to payment for working high duties unless the period of higher duties worked exceeds four continuous weeks.  This is a scandalous rort!  The present situation is- 

• As a Customs Officer, you perform your duties for 48 weeks each calendar year.
• You are entitled to 4 weeks paid recreation leave.
• Customs pays you for 52 weeks each year.
• While you are absent on leave, someone else is supposed to do the work ordinarily done by you.

Loss of Confidence or Opportunity for Management Abuse? 

Set out at the end of this page is the text of an email sent by COA Federal Vice President Glenn Jones to Australian Customs Service Deputy Chief Executive Officer Mick Roche on Friday 20 February 1998.  While the 'Loss of Confidence' provision referred to in this email is contained in the draft Senior Officer's Agreement, it is identical to that put forward for inclusion in any agreement covering Customs Officer Bands 1 to 5 and therefore the questions and concerns apply equally.  As you read through the text of this email, you will see that this type of provision has great potential for harm unless it is implemented carefully and Customs Officers are provided with the appropriate training and means to protect their own interests.  

So what will you get? 

In return for these and many other sacrifices in your work conditions, you are expected to accept the offer of a mere 3% increase at sign on and another 3% increase in 12 months time.  That offer does not even cover half the increased efficiency that ACS management will expect from you under the new higher duties provision alone.  Don't be fooled into rushing into any agreement offered by management.  There is plenty of time to negotiate an equitable outcome! 

Over the next few weeks, we will be examining a number of other provisions in the proposed draft agreements.  We will also publish any replies by ACS management and any comments by interested Customs Officers.  If you want to send in a comment, we ask only three things - make it relevant, make it easy to read, and don't defame any individual or organisation. We would also like to hear from people such as police or other professionals who have actual experience with a 'loss of confidence' provision. 

To post a comment or ask a question, activate this link.  

E-mail from Glenn Jones to Mick Roche 

From: JONES  Glenn 
To: ROCHE  Mick 
Subject: Loss of Confidence Provisions in draft agreements 
Date:  20 February 1998 15:41 

Mick, 

I have had an opportunity to browse through the latest draft of a certified agreement between Customs and its Senior Officers.  The focus of this quick note is the 'Loss of Confidence' provision.  Disregarding the merits of the concept, I would like to glean some understanding of the potential operation of such a provision. 

I am aware that it bears strong resemblance to the provision recently introduced (after much acrimony, threats of industrial action and a substantial accompanying pay rise) to the NSW Police Service.  My immediate concerns relate to the four bullet points under the heading 
'Application' and are as follows- 

How does Customs define an 'adverse finding'?  How would Customs view a claim of privilege before a Royal Commission or some legislatively-constituted body such the NSW ICAC?  I ask this because I am aware that Customs Officers and other Commonwealth Officers have been involved in such situations?  How does Customs view an adverse finding before, say, the Human Rights and Equal Opportunities Commission - given that such tribunals do not exercise judicial authority? 

How does Customs define 'criminal proceedings'?  Is the issue of a summons sufficient,  would arrest suffice, would a first appearance in court be enough, or is it necessary to reach a conviction?  Would Customs' proceedings against an officer be stayed, pending an appeal 
against a conviction? 

How does the Customs Service define 'criminal' when referring to activity or proceedings?  Are we to infer an offence which carries with it the 'criminal' burden of proof, i.e. 'beyond reasonable doubt'?  If such is the case, then it may conceivably include drug trafficking, 
murder, theft, or fraud; or it could equally include parking offences, littering, drink driving or unseemly words.  Are we talking about indictable offences - offences which carry with them the right to a jury trial, or is a summary offence before a magistrate sufficient?  This  definition will have great importance to those officers who may be affected by these provisions. 

This leads me to query how Customs will define a situation where is it reasonable to expect an employee to take action to inform an appropriate authority upon witnessing 'criminal activity'.  Unless some fence is put around this provision and specific guidance is given, then Customs may find that its officers are telephoning the police (or other authorities) in  circumstances where they might otherwise not do so, in order to preclude an accusation of 'neglect' under this provision.  Given the recent coverage of overt drug sales in Garema Place and City Walk (editors note - Canberra CBD pedestrian shopping areas which received recent media coverage for overt heroin dealing), is it not  foreseeable that officers who witness such activities should either intervene and arrest the offenders (where the substance is suspected to be heroin -- a prohibited import) or at least take some other form of positive action (where the substance involved is not suspected of being a PI but is nonetheless recognised as probably being a prohibited drug)? 

How does Customs define 'association'?  Does there have to be some criminal context?  How does an officer get on if his or her spouse has a criminal conviction?  How does Customs define 'ongoing'?  Are we talking about habitually consorting - in which case, the legal  equirement in those jurisdictions which maintain such an offence is usually 7 instances (or 'bookings') in any 6 month period and the criminal must have been convicted of an indictable offence?  Must the 'criminal' have been convicted, or is it merely sufficient to be a 'reputed criminal'? Do spent conviction provisions impact upon the definition of a 'criminal'?  How is a Customs Officer who does not have regular access to police criminal records or  ntelligence databases supposed to know whether all his or her friends outside the service are 'clean skins'?  Where police officers have a concern about whether they might be associating with an inappropriate person, they have reasonable access to criminal records and police  intelligence files to protect themselves.  Is it proposed to make such access available to all Customs Officers so that they might make reasonable inquiries and therefore protect their reputation and that of the Customs Service? 

I believe that there is some merit in exploring this type of provision.  However, unless it is properly defined, tightly controlled, appropriately implemented and staff are provided with the training and support required to make it work, then it merely poses a danger both to the service and to its officers.  Having had direct experience of the police environment, I note that our officers are not indoctrinated in the same fashion as police.  We have many officers to whom  the whole notion of law enforcement is alien.  Unless great care is taken in considering a loss of confidence provision, it has the potential to cause great division within Customs. 

I look forward to receiving more information about this proposition and to having my  questions answered. 

Rgds - Glenn Jones