AA v Australian Federal Police
[2019] FWCFB 6616
•14 OCTOBER 2019
| [2019] FWCFB 6616 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
AA
v
Australian Federal Police
(C2019/4506)
VICE PRESIDENT CATANZARITI | SYDNEY, 14 OCTOBER 2019 |
Appeal against decision [2019] FWC 4646 of Deputy President Kovacic at Canberra on 4 July 2019 in matter number C2018/441 – construction of enterprise agreement – permission to appeal refused.
Introduction
[1] AA (the Applicant) filed an application pursuant to s.739 of the Fair Work Act 2009 (Cth) (the Act) for the Fair Work Commission to deal with a dispute with the Australian Federal Police (the Respondent) under the Australian Federal Police Enterprise Agreement 2017-2020 (the Agreement). The dispute related to whether clause 56 – Workforce Adjustment was enlivened by a restructure of the Air Security Officer (ASO) Program.
[2] On 4 July 2019, Deputy President Kovacic answered that question in the negative. 1 The Deputy President found that the restructure of the ASO Program does not in the absence of a declaration by the AFP Commissioner that employees affected by the restructure are likely to become potentially excess, enliven the workforce adjustment process in clause 56 of the Agreement.2 The Appellant now seeks to appeal that Decision, for which permission to appeal is required.
[3] This Full Bench heard the parties on permission to appeal, together with the substantive merits of the appeal, on 20 September 2019. The legal representatives for both parties were granted permission to appear pursuant to s 596(2)(a) of the Act as it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
The decision at first instance
[4] The surrounding circumstances of the dispute, as set out in paragraphs [6] – [9] of the Decision, are summarised as follows:
• The ASO Program was established in response to the 11 September 2001 terrorist attacks in the United States of America, and under the Program ASO’s provide in-air security on commercial domestic and international flights. Since 2012, all ASO’s have been sworn police officers.
• In late 2017/early 2018, the Respondent foreshadowed its intention to restructure the ASO Program and have the work absorbed into the work of the Respondent’s Special Response Group – Discreet Operations (SRG-DO) teams, with the brief proposing the restructure containing the excerpt set out in paragraph [7] of the Decision.
[5] At paragraph [10] of the Decision, the Deputy President set out the clause relevant to the dispute:
“[10] Clause 56 of the Agreement, which appears in Part VIII – Resignation, Retirement and Termination of Employment of the Agreement, provides as follows:
“56 Workforce Adjustment
(1) Where the Commissioner determines that one or more Employees are excess to requirements, those Employees will be subject to workforce adjustment processes.
(2) An Employee is excess to requirements if:
(a) the Employee forms part of a class of AFP Employees (however described) and there are more Employees in the class than is necessary for the efficient and economical working of the AFP;
(b) the services of the Employee cannot be effectively used because of technological changes within the AFP, or because of changes to the nature, extent or organisation of the functions of the AFP; or
(c) the duties usually performed by the Employee are to be performed by the Employee at a different location and the Employee is not able to perform duties at that location and the Commissioner has determined that these provisions will apply to the Employee.
Notification of Proposal to declare Excess and Voluntary Redundancy
(3) Where the Commissioner determines that an Employee is likely to become potentially excess to requirements, the Commissioner will notify the Employee in writing as soon as practicable.
(4) The Employee will be given 14 calendar days (first consideration period) from the date of the notification of proposal to declare excess to consider the option of a potential voluntary redundancy, raise any issues of concern relating to the proposed declaration and to provide a written response to this notification.
(5) At the end of the first consideration period, the Commissioner may declare the Employee excess. Before a decision to declare an Employee excess is made, any response from the Employee and any redeployment opportunities available at the time of the notification, to be taken into account.
Declaration of Excess Status and Voluntary Redundancy
(6) Where the Commissioner declares that an Employee is excess to requirements and that the Employee has at least six months continuous eligible service, they will be provided with a declaration of excess status which will include an offer of voluntary redundancy payment (in writing).
(7) The Employee will then have 14 calendar days (second consideration period) from the date of declaration of excess status to consider the option of voluntary redundancy in accordance with sub-section 56(9) below, or decline an offer of voluntary redundancy and pursue redeployment or reduction options during a retention period.
Voluntary Redundancy Payment
(8) ...
Redeployment
(12) Where the Commissioner declares that an Employee is excess, the AFP will endeavour to redeploy the Employee into a suitable role subject to consideration of relevant skills, performance and any re-training requirements.””
[6] The Deputy President referred to Workpac Pty Ltd v Skene (Workpac) 3and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (Berri)4as authorities setting out the principles relevant to the interpretation of enterprise agreements.5
[7] At paragraph [33] of the Decision, the Deputy President made several observations regarding clause 56:
“• employees are only subject to the workforce adjustment process “[w]here the Commissioner determines that one or more Employees are excess to requirements…” [clause 56(1) – underlining added] – i.e. in the absence of such a determination by the Commissioner the workforce adjustment process is not enlivened or, paraphrasing the Applicant’s submissions, the workforce adjustment process is not “triggered”;
• clause 56(2) sets out when an employee is excess to requirements, i.e. it is a definitional clause;
• the words “a class of AFP Employees (however described)” in clause 56(2)(a) connotes a broad concept;
• clauses 56(3) to (5) appear under a subheading “Notification of Proposal to declare Excess and Voluntary Redundancy”;
• clause 56(3) again requires a determination by the Commissioner that an employee is likely to become potentially excess and requires the Commissioner to notify the employee “…in writing as soon as practicable”;
• clause 56(4) deals with the first consideration period, i.e. the 14 calendar day period from the date an employee is notified of a proposal to declare the employee excess, while clause 56(5) provides that at the end of the first consideration period the Commissioner “may” declare the employee excess and sets out what must be taken into account before a declaration that an employee is excess is made;
• clauses 56(6) and (7) appear under the subheading “Declaration of Excess Status and Voluntary Redundancy” and set out what occurs where the Commissioner declares that an employee is excess to requirements; and
• clause 56(12) requires the AFP to endeavour to redeploy an employee into a suitable role in circumstances where they have been declared excess.”
[8] Having made the above observations, the Deputy President said:
“[34] There is nothing in clause 56 which requires or mandates that the Commissioner must determine that an employee is “potentially excess” or “excess” to requirements. The language used throughout the clause is “[w]here the Commissioner determines” [clauses 56(1) and (3)], “the Commissioner may declare the Employee excess” [clause 56(5)] and “where the Commissioner declares” [clause 56(6)]. In other words, the decision as to whether or not an employee is excess to requirements is a discretionary decision for the Commissioner premised on one of the three circumstances set out in clause 56(2).
[35] While ASO’s could be considered “a class of AFP Employees (however described)…” for the purposes of clause 56(2)(a) given the broad concept those words connote, this of itself does not enliven the workforce adjustment process in clause 56 in the absence of the AFP Commissioner determining that the “class of AFP Employees” are excess to requirements. This does not however mean that clause 56(2) has no work to do. The work the provision has to do is to define the circumstances in which an employee is excess to requirements and limit the circumstances in which the AFP Commissioner can make a determination to that effect.
[36] While I note the Applicant’s contention that the word “may” in clause 56(5) means must, I do not accept that interpretation for two reasons. First, to read the provision that way effectively requires a rewriting of the provision. To do so would be inconsistent with Principle 2 in Berri which states that “[t]he 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.” Second, to get to that stage of the workforce adjustment process the Commissioner must have determined that an employee “is likely to become potentially excess to requirements” as per clause 56(3).
[37] As to the Applicant’s contention that the AFP had determined that ASO’s could be redeployed without first notifying them that it was likely that they would become potentially excess as required by clauses 56(3)-(5) of the Agreement, I note that the consultation term in the Agreement (clause 70) requires the AFP inter alia to notify relevant employees of a decision to introduce major change and as soon as practicable after making that decision discuss with the relevant employees measures it was taking to avert or mitigate the adverse effect of the change on the employees. The consultation terms defines major change as including the restructuring of jobs [clause 70(12)(g)]. In other words, clause 70 of the Agreement requires the AFP to consider measures to mitigate the adverse effect of a major change. Those measures would, depending on the nature of the major change and its impact, potentially include redeployment. Put another way, for the AFP not to have considered redeployment opportunities in the context of the restructure of the ASO Program would potentially be inconsistent with its obligations under clause 70 of the Agreement.” (Footnotes omitted)
[9] Having applied the principles relevant to the interpretation of enterprise agreements, the Deputy President concluded that:
“[44] Drawing on the above analysis does not support a finding that the workforce adjustment process in clause 56 of the Agreement is automatically enlivened in respect of ASO’s in the absence of a declaration by the AFP Commissioner that those ASO employees affected by the restructure are likely to become potentially excess. That view is strengthened in circumstances where the evidence supports a finding that all ASO employees are likely to be found other positions with the AFP.
Conclusion
[45] For all the above reasons, I find that the restructure of the ASO Program does not in the absence of a declaration by the AFP Commissioner that employees affected by the restructure are likely to become potentially excess enliven the workforce adjustment process in clause 56 of the Agreement. The application is therefore dismissed.”
Grounds of appeal and submissions
[10] The Appellant contended that the Deputy President erred in his construction of clause 56 of the Agreement and its application to the ASO restructure. More specifically, and in summary, the Appellant submitted that:
a) The Deputy President erred in concluding that: “There is nothing in clause 56 which requires or mandates that the Commissioner must determine that an employee is “potentially excess” or “excess” to requirements” and that “the decision as to whether or not an employee is excess to requirements is a discretionary decision for the Commissioner premised on one of the three circumstances set out in clause 56(2).” 6 The Appellant submitted that the language in clause 56(1) and in clause 56(2) is directive and mandatory and that other than clause 56(2)(c), the categories do not invite a “discretionary decision”7 by the AFP Commissioner.
b) The Deputy President erroneously equated the “determination” in clause 56(1) and (3) with the “declaration” in clause 56(5) and (6). Clause 56 contemplates a “declaration” by the AFP Commissioner that an employee is “in excess” in clause 56(5), but that declaration is one part of the “workforce adjustment process” set out in clause 56 that must be followed where “the Commissioner determines that one or more Employees are excess to requirements” in clause 56(1). Where the “determination” as to the duties and work location meets the definition in clause 56(2), clause 56(1) is met and the workforce adjustment process in clause 56 is enlivened.
c) The Deputy President erred in determining that a “declaration” that ASO employees are excess to requirements was a precondition to the operation of clause 56 of the Agreement. 8 A “declaration” that an employee is “excess” is a step within the workforce adjustment process and therefore it cannot be said that it is a precondition to the application of the workforce adjustment process. The application of the workforce adjustment process in clause 56 turns on whether the circumstances of a restructure meet the definition in clause 56(2) in relation to one or more employees, and not a discretionary decision of the AFP Commissioner or the making of a declaration.
[11] The Respondent submitted that the Decision is correct for four reasons:
• First, in the proceedings at first instance, it was not put that the AFP Commissioner had made a determination that full-time ASO employees are “excess” or were likely “excess”, and there was no evidence of a determination. Therefore, clause 56 was not enlivened.
• Secondly, the condition precedent of clause 56(1) had not been met, in that the AFP Commissioner had not declared any ASO employees to be “excess to requirements”. The Appellant directed the Full Bench to the findings of the Deputy President at paragraph [33] of the Decision at the first, second and fifth bullet points. 9
• Thirdly, the interpretation of clause 56 advanced by the Appellant gives no meaning to the words “Where the Commissioner determines…” in clause 56(1). On the Appellant’s interpretation, clause 56(2) if the operative provision which, once objectively satisfied, triggers the obligations under clause 56(1) and clause 56 more broadly. The Appellant submitted that the words “where the Commissioner determines” in clause 56(1) must be given work to do, and on a plain reading of clause 56, clause 56(1) is the operative provision which enlivens the operation of the clause. Clause 56(2) is simply the definitional provision which, as the Deputy President found, limits the circumstances in which the AFP Commissioner can make a determination pursuant to clause 56(1).
• Finally, the Appellant incorrectly stated that the Deputy President made a finding that the ASO employees who are affected by the proposed restructure to the ASO Program are a “class of AFP employees” for the purpose of clause 56(2)(a). The Deputy President made no such finding, but rather observed that “ASO’s could be considered “a class of AFP Employees”…for the purposes of clause 56(2)(a)”. 10 Understood properly and in light of s 40H(1) of the Australian Federal Police Act 1979(Cth) (AFP Act), the word “class” is a matter to be determined by the AFP Commissioner, having regard to what the AFP Commissioner determines the AFP’s requirements to be. In the public sector, the concept of “excess” attaches itself to an employee, rather than a position, and here no employee or class has been determined to be “excess” and therefore clause 56 is not enlivened.
Permission to appeal
[12] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 11 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[13] Subsection 604(2) of the Act requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so.” The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. In GlaxoSmithKline Australia Pty Ltdv Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters ...” 12
[14] It will rarely, if ever, be appropriate to grant permission unless an arguable case of appealable error is demonstrated. This is so simply because an appeal cannot succeed in the absence of appealable error.
[15] The Appellant submitted that permission to appeal should be granted because: 13
• The construction adopted in the Decision is erroneous and has resulted in a decision that is inconsistent with “a fair work instrument” and as such exceeded the jurisdiction of the Commission under s 739 of the Act;
• The Decision denies important benefits to members of the Respondent at times of workforce reorganisation; and
• The Decision manifests an injustice to ASO’s who bargained for a process to deal with workforce adjustment, and the Decision reads down the additional benefit in clause 56 of the Agreement.
[16] In addition to its substantive submissions, the Respondent submitted that permission to appeal should be refused as the dispute is narrow, relating only to the introduction of the proposed changes to the ASO program.
Consideration
[17] Foremost, we note that the Deputy President’s findings of fact as contained in paragraph [6] – [9] of the Decision remain undisturbed on appeal. We have summarised these paragraphs above, 14 and proceed on the basis that such facts are correct.
[18] The legal principles relevant to the interpretation of enterprise agreements are well established. At paragraphs [31] – [33] of the Decision, the Deputy President identified the relevant principles 15 and it is not necessary that we restate them here. On appeal, the Appellant has not challenged the principles identified and applied by the Deputy President in the Decision.
[19] We have heard the parties on permission to appeal and the full argument of the grounds of appeal. For the reasons which follow, we are not satisfied that it is in the public interest to grant permission to appeal.
[20] It is the Appellant’s central contention that the Deputy President erred in his construction of clause 56 of the Agreement. Particularly, the Appellant challenges the Deputy President’s reasoning in respect of his construction of clause 56 at paragraph [34] of the Decision, set out above. 16 The Appellant contends that the language in clause 56(1) and clause 56(2) of the Agreement is directive and mandatory, and that the AFP Commissioner erred in finding that the decision as to whether or not an employee is excess to requirements is a discretionary decision for the AFP Commissioner. It is the Appellant’s submission that the sub-clauses of clause 56(2) should be read disjunctively, and if any of the circumstances set out in each relevant sub-clause are met, then clause 56(1) is met and the workforce adjustment process is enlivened.17
[21] The manner in which the Deputy President addressed the dispute before him in relation to clause 56 of the Agreement discloses an orthodox application of the legal principles relevant to the interpretation of enterprise agreements. The application of such principles led to the Deputy President’s conclusion that the restructure of the ASO Program does not in the absence of a declaration by the AFP Commissioner that employees affected by the restructure are likely to become potentially excess, enliven the workforce adjustment process in clause 56 of the Agreement.
[22] The Deputy President identified that the starting point in interpreting an enterprise agreement is the ordinary meaning of the relevant words, and in that regard made several observations. 18 These observations framed the application of the principles relevant to enterprise agreements to clause 56 of the Agreement, and remain unchallenged on appeal. Relevantly we emphasise the following observations:
• In the absence of a determination by the AFP Commissioner that one or more employees are excess to requirements the workforce adjustment process is not enlivened;
• clause 56(2) sets out when an employee is excess to requirements, i.e. it is a definitional clause; and
• clause 56(3) again requires a determination by the AFP Commissioner that an employee is likely to become potentially excess.
[23] To construe clause 56 of the Agreement as the Appellant submits the Deputy President should have would result in the words “where the Commissioner determines” having no work to do. The Deputy President emphasised the word “determines” where it appears in clause 56(1), 19 and considered “the language used throughout the clause”, being the entirety of clause 56, in reaching his conclusion that “the decision as to whether or not an employee is excess to requirements is a discretionary decision for the Commissioner.”20 Further, it is evident that the Deputy President understood and applied the requirement that words in an enterprise agreement must be given work to do, as he directly addressed it in relation to clause 56(2). The Deputy President identified that the work clause 56(2) has to do is to “define the circumstances in which an employee is excess to requirements and limit the circumstances in which the AFP Commissioner can make a determination to that effect”.21 The Deputy President has applied the well-established principles relevant to the interpretation of enterprise agreements in an orthodox manner, and we are of the view that the appeal does not enliven the public interest.
[24] Additionally, we note that there is no finding made in the Decision that the AFP Commissioner had “determined” that the ASO’s were excess to requirements. Paragraph [7] of the Decision states, and remains unchallenged on appeal, that “the AFP foreshadowed its intention to restructure the ASO Program and have the work absorbed” into the work of the SRG-DO teams. 22 It is the Appellant’s contention that “the abolition of the ASO position and creation of the SRG-DO teams was expressly done for the efficient and economical working of the AFP”.23 However, the decision that the ASO positions would no longer be required is distinct from a determination that one or more employees are excess to requirements, and there is no finding in the Decision that the latter occurred. In applying Berri, the Deputy President noted that “the restructure of the ASO Program occurs against the background of s.40H(1) of the AFP Act”, which enables the AFP Commissioner to “determine in writing the duties of an AFP employee, and the place or places at which the duties are to be performed.”24 The Deputy President’s ultimate conclusion at paragraph [44] was “strengthened in circumstances where the evidence supports a finding that all ASO employees are likely to be found other positions with the AFP”.25
[25] Further, we do not consider that this appeal raises issues of importance and general application, nor is the Decision at first instance counter intuitive, it does not manifest an injustice, it is not attended with sufficient doubt to warrant its reconsideration, and the legal principles applied by the Deputy President do not appear disharmonious when compared to other recent decisions dealing with similar matters.
Conclusion
[26] For the above reasons, we order as follows:
• Permission to appeal is refused; and
• the appeal is dismissed.
VICE PRESIDENT
Appearances:
Mr A Howell of counsel and Mr M Peterson for the Appellant.
Mr Y Shariff and Ms V Bulut of counsel for the Respondent.
Hearing details:
2019.
20 September.
Sydney.
Final written submissions:
Appellant’s written submissions dated 19 August 2019.
Respondent’s written submissions dated 13 September 2019.
Printed by authority of the Commonwealth Government Printer
<PR712704>
1 [2019] FWC 4646.
2 Decision at [5].
3 [2018] FCAFC 131.
4 [2017] FWCFB 3005.
5 Decision at [31] – [32].
6 Decision at [34].
7 Decision at [34].
8 Decision at [44], [45].
9 See paragraph [6] of this decision.
10 Decision at [35].
11 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
12 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [27]; [(2010) 197 IR 266].
13 In oral submissions, the Appellant stated that it no longer advanced its submission that permission to appeal is not required under clause 71(12) of the Agreement; see transcript of proceedings dated 20 September 2019 at PN11.
14 See paragraph [4] of this Decision.
15 As set out in Workpac Pty Ltd v Skene and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited,
16 See paragraph [7] of this decision.
17 Transcript of proceedings dated 20 September 2019, PN90.
18 Decision at [33].
19 Paragraph [33] of the Decision.
20 Decision at [34].
21 Decision at [35].
22 Decision at [7].
23 Appellant’s submission dated 19 August 2019.
24 Decision at [43].
25 Decision at [44].
0
5
0