AA v Australian Federal Police - [2019] FWC 4646

[2019] FWC 4646 [Note: An appeal pursuant to s.604 (C2019/4506) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

AA

v

Australian Federal Police

(C2018/4419)

Deputy President Kovacic

CANBERRA, 4 JULY 2019

Application to deal with a dispute – dispute as to whether the proposed restructure of the Air Security Officer Program enlivens the workforce adjustment provisions the Australian Federal Police Enterprise Agreement 2017-2020 – proper construction of the Agreement – application dismissed.

On 10 August 2018 AA (the Applicant) made an application under s.739 of the Fair Work Act 2009 (the Act) and in accordance with the dispute resolution process of the Australian Federal Police Enterprise Agreement 2017-2020 (the Agreement).[1] The dispute concerns whether clause 56 – Workforce Adjustment of the Agreement is enlivened by a restructure of the Air Security Officer (ASO) Program.

The relief sought by the Applicant, as outlined in its application, is a determination that the restructure of the ASO Program is a workforce adjustment under clause 56 of the Agreement and that the workforce adjustment provisions of Part VIII of the Agreement (i.e. clause 56) therefore apply.

The application was the subject of conferences on 6 September and 30 October 2018 which failed to resolve the dispute. On 12 December 2018 the Fair Work Commission (the Commission) issued a Confidentiality Order made pursuant to ss.593(3)(d) and 594 of the Act which among other things provided that there would be no disclosure of the Applicant’s identity.[2]

The application was heard on 9 January 2019. Mr Anthony Howell of Counsel appeared with permission for the Applicant, while Ms Vanja Bulut of Counsel appeared with permission for the Australian Federal Police (AFP – the Respondent). Ms Vicki Linabury, Manager – Legal and Industrial with the Australian Federal Police Association (AFPA), gave evidence on behalf of the Applicant, while Superintendent Richard Breiner and Ms Luci Henson, the AFP’s Manager People Strategies, both gave evidence for the Respondent.

For the reasons set out below, 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.

Background

The ASO Program was established in response to the 11 September 2001 terrorist attacks in the United States of America. Under the Program ASO’s provide in-air security on commercial domestic and international flights. Prior to 2012 ASO functions were performed by Protective Service Officers, i.e. AFP employees who are not conferred police powers. Since 2012 all ASO’s have been sworn police officers.

In late 2017/early 2018 the AFP foreshadowed its intention to restructure the ASO Program and have the work absorbed into the work of the AFP’s Special Response Group – Discreet Operations (SRG-DO) teams. This change was confirmed in mid-2018, with the brief proposing the restructure prepared by Superintendent Breiner including the following:

“[c]urrent operational demands and budgetary constraints on the AFP require portfolios to identify efficiencies and possible enhancements to AFP operating structures. xx xx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
It is open to the AFP to meet the obligations outlined above and transition to a … model … The benefits of moving to a … model as outlined include:
-Maintenance of an ASO capability for the Australian Government and discharging all AFP obligations required by the Australia [sic] Government.
-Maintenance of a threat deterrence mechanism via an ASO Program
-…
-Infrastructure and personnel are already in place and;
-Reduced cost.

The disadvantages of transitioning to a … Model include:
-…
-Costs associated with redeployment, retraining or redundancy of current dedicated ASO staff …”[3]

The AFPA subsequently initiated a dispute under clause 71 – Dispute Resolution of the Agreement. The dispute concerns the failure of the AFP to apply clause 56 of the Agreement to the restructure of the ASO Program and the abolition of ASO positions.

The AFP intends to implement the restructure by way of a “spill and fill” involving the advertising of SRG-DO positions. In 2018 the AFP rejected an AFPA proposal to delay the implementation of the “spill and fill” until the Commission had determined the dispute. As a result, in mid-November 2018 the AFPA initiated Federal Court proceedings alleging a breach and further foreshadowed breaches of the Agreement. In making the application the AFPA sought an interlocutory injunction restraining the “spill and fill” process proposed by the AFP. The AFP subsequently agreed to delay the implementation of the “spill and fill” of ASO positions to enable the Commission to hear and determine the dispute.

The Agreement provision

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.”

The term ‘Commissioner’ is defined in clause 8 XIII of the Agreement as follows:

“Commissioner means the Commissioner of the AFP and/or their authorised delegates.”

Further, clause 6(1) of the Agreement which concerns delegation provides that:

“[t]he Commissioner may, in writing, delegate any of the Commissioner’s powers or functions under this Agreement other than under this section or in relation to an Individual Flexibility Arrangement which varies an Employee’s entitlements to remuneration, allowances or leave or sub-sections 11(15), 17(6), 17(8), 17(9), 17(11) and 20(1).”
The Applicant’s case

The Applicant submitted that the central issue in this matter was the proper construction of clause 56 of the Agreement and its application to the ASO restructure, adding that clause 56(2)(a) was most centrally relevant as it defined one of three circumstances in which an employee covered by the Agreement was excess to requirements. The Applicant submitted that the principles applicable to the proper construction of an enterprise agreement were summarised by the Full Court of the Federal Court in Workpac Pty Ltd v Skene (Workpac)[4], adding that the principles emphasise that the Commission is to begin its interpretive exercise by reference to the ordinary meaning of the words used having regard to the context and purpose of the provision.

Specifically, the Applicant submitted that while the word “class” in clause 56(2)(a) was not defined in the Agreement it was plainly intended to have its ordinary broad meaning, adding inter alia that giving the word its ordinary meaning better served to achieve the industrial purpose of the provision. The Applicant posited that the industrial purpose of the provision was to initiate a process of notification when a class of employees, however described, was likely to become potentially excess to requirements. In that regard, the Applicant highlighted that that the first obligation under clause 56 of the Agreement arose prior to any determination that an employee was in fact excess, with the obligation arising under clauses 56(3) and (4) of the Agreement and requiring that an employee who the AFP Commissioner had determined was likely to become potentially excess to requirements be given 14 days to consider the option of a potential voluntary redundancy. The Applicant further posited that if the words “class of AFP employees (however described)” in clause 56(2)(a) were given their broad and general meaning that ASO’s were a class of AFP employees.

The Applicant further submitted that:

there could be no doubt that the “spill and fill” of existing ASO positions had arisen because the AFP had formed the view that there were more employees in the class (i.e. ASO employees) than was necessary for the efficient and economical working of the AFP;

the apparent purpose of the restructure was to do away with the position of ASO because a view had been formed that it was no longer necessary to have that work performed as a stand alone function;

to permit the AFP to depart from the commitment given in clause 56 of the Agreement would defeat the very purpose of having such a clause in the first place;

s.40H of the Australian Federal Police Act 1979(Cth) (the AFP Act) added nothing to the construction exercise required of the Commission in this dispute;

whether there were more positions available in the AFP for sworn police officers than there were ASO’s was irrelevant to the question to be determined;

it was wrong to contend that clause 56 of the Agreement was not concerned with positions or roles;

clause 56 of the Agreement was enlivened when for example it became apparent that an AFP employee was likely to become potentially excess to requirements as per clause 56(3) of the Agreement;

while clause 56(1) of the Agreement referred to the AFP determining that one or more employees were excess to requirements, the AFP could not apply a different test to that contemplated by clause 56(2) as the requirement contemplated by clause 56(1) was not some purely subjective determination of the Commissioner;

what the AFP inaptly described in its submissions as the ‘condition precedent’ in clause 56(1) was not some purely subjective determination by the AFP Commissioner, adding that if the determination of the AFP Commissioner met one of the definitions in clause 56(2) the AFP could not avoid the obligations agreed to in the Agreement by refusing to recognise the affected cadre of employees as excess or by misunderstanding what the Agreement provided in defining when employees were excess;

it was apparent from the various communications annexed or referred to in Ms Linabury’s witness statement that as a result of the restructure of the ASO Program police officers would no longer be engaged to fulfil ASO duties as those duties would in future be performed by new multi-skilled officers working in teams, xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx;

the AFP had determined that officers could be redeployed across the AFP without first notifying the officer that it was likely that they would become potentially excess as required by clauses 56(3)-(5) of the Agreement;

the approach adopted by the AFP denied the ASO’s their right under clauses 56(3)-(5) to be heard before the determination contemplated by clause 56(1) and 56(6) was finally made, i.e. the ASO’s were denied the opportunity to request voluntary redundancy or raise other issues as contemplated by clause 56(4); and

the Commission should determine the dispute by:

- confirming the ASO cadre affected by the announcement of 9 July 2018 were excess employees within the meaning of s.56(2)(a) of the Agreement, and
- requiring the AFP to issue the correspondence contemplated by the first consideration period in clause 56(3)-(5) of the Agreement.

In its oral submissions the Applicant reiterated aspects of its written submissions. Beyond that, key aspects of the Applicant’s oral submissions included that:

clause 56(1) of the Agreement was the “triggering” provision,[5] later positing that the word “may” in clause 56(5) meant “must” and that on its proper construction meant that it was an obligation which was “reposed” if a person was excess within the definition of the clause;

the existence of redeployment opportunities did not mean that a person was not or could not be excess, contending that if that were the case clauses 56(2)(a) and (c) would be entirely unnecessary and that the provisions must be given work to do;

the context and purpose of clause 56 of the Agreement was to give employees who were excess an election whether to pursue voluntary redundancy or redeployment;

with regard to clause 56(5) of the Agreement, if the existence of redeployment opportunities meant an employee could never be excess then the clause could not operate because the employee would never be given the election which was required and the redeployment protections could never apply;

this dispute was about the AFP’s failure to apply clause 56 and, given Ms Henson’s evidence, to even properly consider whether the clause should be applied at all;

those ASO’s who had applied for DO roles had been denied the benefits of clause 56, i.e. the opportunity to consider a voluntary redundancy;

while clause 56(5) required redeployment to be considered at that stage of the workforce adjustment process, the AFP should not form a view about redeployment capacity before it gets halfway through the process in clause 56 which was triggered when someone was made excess;

it was ineluctable that the employees in this case were excess as they met the requirement in clause 56(2)(a) given that all full-time ASO’s had lost their positions; and

ASO’s were an identifiable cadre by reference to their qualifications and the nature of the duties they performed, not just because they were paid an allowance.

Ms Linabury provided two witness statements.[6] In her first witness statement Ms Linabury gave a comprehensive chronological history of the dispute, whilst in her second statement she responded to aspects of Superintendent Breiner’s witness statement. Key aspects of Ms Linabury’s oral evidence included that:

her understanding was that all ASO’s were sworn police officers who could exercise police powers;[7]

she did not believe that ASO’s were asked to perform general policing duties at airports;[8]

xxxxxx xxxxx in 2016 concerned changes to the ASO Program in Brisbane and Perth xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx;[9]

xxxxx xxxxx saw the workforce adjustment clause under the Australian Federal Police Enterprise Agreement 2012-2016[10] (the 2012 Agreement) enlivened;[11]

the workforce adjustment clause in the 2012 Agreement was different to the equivalent clause in the Agreement (i.e. clause 56);[12]

the AFPA still did not have any information on what the new ASO model looked like nor did it have any visibility as to how the model would operate once ASO’s transitioned into the new DO structure;[13]

her understanding based on what she had been told was that the duties performed by ASO’s would continue to be performed XXXXX XXXXX XXX by members of the DO team, acknowledging that the ASO function did not cease to exist;[14]

the proposed change to the ASO Program had been put on hold pending a “spill and fill” process;[15] and

her view was that the minute that full-time ASO’s were no longer required they were potentially excess, adding that the action of the AFP to abolish all the ASO positions was a declaration that they were potentially excess.[16]

The Respondent’s case

In short, the AFP submitted that clause 56 of the Agreement was not enlivened in the circumstances of this dispute. In support of that view, the AFP highlighted that the current role scope for “Team Member Air Security Program, Air Security Officer” dated 19 October 2012 provided that “[t]he role is a sworn police officer role” and that “ASOs can expect to be deployed in a variety of sworn policing roles within Aviation.”[17] This the AFP contended was consistent with s.40H(1) if the AFP Act which provides that:

“[t]he Commissioner may from time to time determine in writing the duties of an AFP employee, and the place or places at which the duties are to be performed.”

The AFP further contended that the express discretion contained in s.40H(1) of the AFP Act was vital in allowing the AFP sufficient flexibility to adapt and respond to changing and emerging threats. The AFP also noted in its submissions that there were currently XXXX positions available in the AFP for sworn police officers XXXXX XXXXX XX, adding that as such employees engaged as ASO’s on a full-time basis had not been declared excess by the AFP Commissioner nor was there any intention to declare them excess.

The AFP characterised the question to be determined by the Commission in this case as being whether the changes to the ASO Program enlivened clause 56 of the Agreement, noting that the Applicant asserted that full-time ASO’s were all excess to requirements on the basis that they were part of a class of AFP employees and there were more employees in that class than was necessary for the efficient and economical working of the AFP. The AFP submitted that the Commission ought to answer the above question in the negative.

As to the proper interpretation of the Agreement, the AFP posited that the effect of clause 56 of the Agreement was to set out a process by which excess employees were given the opportunity to take a voluntary redundancy, be redeployed or be made involuntarily redundant. The AFP observed that:

clause 56 of the Agreement was concerned with employees being declared excess, not positions or roles being declared excess;

clause 56(1) was the operative provision which, if relevant, enlivened the operation of the clause;

clause 56(1) contains a condition precedent, i.e. the workforce adjustment process set out in clause 56 would only apply if the AFP Commissioner determined that one or more employees were excess to requirements, adding that it was only the AFP Commissioner (or the appropriate delegate) who could determine the AFP’s requirements and whether an employee was excess to those requirements; and

clause 56(2) of the Agreement was a definitional clause which set out the basis on which employees were declared excess for the purposes of clause 56(1), adding that the provision did not of itself entitle an employee to a benefit under the Agreement.

More specifically, the AFP submitted that the position advanced by the Applicant was misconceived and ought to be rejected for the following reasons:

The condition precedent in clause 56(1) had not been met as the AFP Commissioner had not declared any ASO’s to be excess to requirements. To that end, the AFP:
-    relied on the decision of Commissioner Wilson in Brandi v Australian Federal Police (Brandi);[18]
-    contended that the above view was supported by the language used in clause 56 which referred to the Commissioner “determining” or “declaring” an employee to be excess throughout; and
-    submitted that the interpretation of clause 56 of the Agreement advanced by the Applicant gave no meaning to the words “[w]here the Commissioner determines …” in clause 56(1), adding that an interpretation which disregards the words of the Agreement or gives them no effect ought to be avoided, i.e. the words in the Agreement must have work to do.
- Clause 56(2)(a) did not apply to the proposed changes to the ASO Program, with the AFP:
-    acknowledging that whilst it could readily be accepted that the word “class” followed by the phrase “however described” in clause 56(2)(a) connoted a broad concept, the word “class” must be considered in its context and having regard to its purposes in the Agreement and clause 56 specifically;
- positing that the meaning of the word “class” in clause 56(2)(a) understood properly in its context and in light of s.40H(1) of the AFP Act was a matter to be determined by the AFP Commissioner having regard to what the Commissioner determined the AFP’s requirements to be;
-    submitting that contrary to the Applicant’s submissions the work to be attributed to the phrase “however described” was to provide a broad discretion to the AFP in structuring its workforce;
-    contending that if the Commission were to determine that there was only one relevant class to which the Applicant and other ASO’s belong then the ASO employees must form part of the class of sworn police officers; and
-    noting that Ms Henson’s evidence XXXXX XX XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XX and that as such the changes to the ASO Program did not satisfy the definition set out in clause 56(2)(a).
- On no view of the evidence were there more employees in the ASO Program than was necessary for the efficient and economical working of the AFP, drawing on Ms Henson’s evidence that there were vacant positions for all employees who currently performed ASO duties on a full-time basis at the employees’ relevant locations and that as such all of the ASO employees were required for the efficient and economical working of the AFP.

Among other things, in its closing submissions the AFP contended that:

whilst clause 56 of the Agreement was titled Workforce Adjustment it was in effect a redundancy clause, i.e. it dealt with situations whereby an employee was redundant to the AFP’s functions;

clause 56(1) contained two triggering events:

- the first being “[w]here the Commissioner determines that”, i.e. it was up to the Commissioner (and relevant delegates) to make that determination, and
- the second being that “one or more Employees are excess to requirements”, highlighting that it was the employees that were excess not the position that they hold;

clause 56 must be read in the context of the AFP Act and the statutory powers that the Commissioner had because clauses in enterprise agreements were not considered devoid of industrial realities and the context in which they were found, adding that it was important to understand that the Commissioner did have the discretion to assign duties to an employee;

clause 56(2) was a limiting provision in that the Commissioner could not make a determination and then a declaration that an employee was excess to requirements unless one of the three circumstances specified in the provision applied;

with regard to clauses 56(3) to (5) of the Agreement, before it was decided that an employee was excess consideration was given to whether the employee could be utilised elsewhere through redeployment;

as to the Applicant’s contention that the word “may” in clause 56(5) should be read as “must”, this involved rewriting the clause and would result in the clause having no work to do;

clause 56 was only enlivened when an employee could not be redeployed at the first initial stage;

simply because ASO’s were paid an allowance under the Agreement did not make them an identifiable group;

the AFP was required to consider redeployment in clause 56(5) prior to actually making a declaration of excess; and

the work that clause 56 had to do was much more limited than the work the Applicant attributed to the provision.

Superintendent Breiner in his witness statement[19] provided an overview of ASO functions and the history of the ASO Program, highlighting that since October 2012 all ASO’s had been sworn police officers and considered to be the same as any other sworn police officer in the AFP. In that regard, Superintendent Breiner referred to the ASO Role Scope (see paragraph [18] above]). Superintendent Breiner further highlighted that on 1 July 2015 the ASO Program was integrated into the AFP’s Specialist Response Group (SRG) not as a distinct group but within the Discreet Operations (DO) area due to the similar skills sets required of ASO’s and other DO team members.

As to the proposed changes to the ASO Program, Superintendent Breiner deposed that as part of the proposed changes police officers would no longer be engaged to fulfil only ASO duties and that instead ASO duties would be performed by members of the DO teams XXX XXXXX XXXXX . The model Superintendent Breiner stated was intended to strengthen the AFP’s DO teams by broadening their skill sets to include those of ASO’s and create an opportunity for ASO’s to participate in DO training courses to upskill them.

Beyond that, Superintendent Breiner stated that:

all police officers currently performing ASO duties had been provided a preferential opportunity to complete the DO training course and to apply for a Team Member – DO role;

a majority of the ASOs had already completed the DO training course which was a prerequisite for appointment to a role as Team Member – DO;

police officers currently performing ASO duties that did not wish to undertake the DO training, or who did not successfully complete the training, were able to apply for other police officer positions across the AFP and would be assigned to an alternative position in support of AFP priorities;

all sworn police officers, including those performing ASO duties, had appropriate training and skills to perform policing duties across a variety of AFP operational areas;

all ASO’s within DO remain necessary for the efficient and economical working of the AFP; and

there were currently more positions within the SRG XX XXX XXXX xXXX XXXXX XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X.

In his witness statement Superintendent Breiner also disputed aspects of Ms Linabury’s first witness statement.

Key aspects of Superintendent Breiner’s oral evidence included that:

the duties of an ASO were in substance performed on an aircraft though there was a ground operations/general policing component to the ASO capability; [20]

XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X ;[21]

XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X;[22]

part of the AFP’s reasoning for the decision to restructure the ASO Program was to make more efficient use of AFP resources;[23]

XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X;[24]

XXX members of the existing ASO cohort did not volunteer to undertake the DO training;[25]

X applications had been received in response to an advertisement in late 2018 for DO positions, with all but XX of the current ASO cohort having applied for DO roles;[26]

his understanding was that any current ASO who was unsuccessful in securing a DO role would be assigned other duties based on the AFP’s organisational needs;[27]

determining that a position was excess did not mean the person was going to leave the AFP;[28] and

he had not been given a reason why the AFP was not considering ASO’s excess other than it required “bums on seats”, adding that he had just been told there would be no declaration as excess.[29]

Ms Henson in her witness statement deposed inter alia that:

she was a delegate of the AFP Commissioner for the purposes of clause 56 of the Agreement which meant that she was responsible for reviewing all potential determinations for AFP employees to be declared excess under the clause;

if approached to consider whether an employee was to be declared excess under clause 56 she would consider among other things any alternate roles the employee could perform in their local area, followed by any alternate roles which the employee could perform within their existing portfolio and further followed by any alternate roles which the employee could perform outside their portfolio;

sworn members of the AFP were usually readily able to be redeployed (with or without additional training) to other police officer roles;

ASOs were currently employed on Band 2 to 8 classifications under the Agreement and were all sworn members of the AFP, adding that as at 10 December 2018 there were XX Band 2-5 and XX Band 6-7 positions vacant at XX XX (X X X XX XX XX XX XX) and X Band 2-5 position vacant at XX XX (XX XX XXXXX XX XXXXX X XXXXX X XXXXX X XXXXX X XXXXX X); and

to the best of her knowledge while individual AFP employees had from time to time been determined excess under clause 56 of the Agreement (or the equivalent provision in predecessor agreements), there had never been a determination that affected a group of police officers.[30]

In her oral evidence Ms Henson attested inter alia that:

she had not made an assessment that any group of employees had been declared excess at this stage because no documentation or business case had been put to her;[31]

she would expect a line area coming to her with a proposal that a class of employees be declared excess would indicate what steps, if any, it had taken to find alternative roles for the employees;[32]

the AFP wanted to retain its employees as they were valuable, adding that to declare someone excess was therefore very much a “last resort”;[33]

her view was that before someone could be excess the view had to be formed that their services could not be effectively used within the AFP, acknowledging that her view in that regard was based on her human resources experience and training as opposed to some specific legal advice about the operation of the Agreement;[34] and

she was not aware of anyone else with the requisite delegation having been approached to consider whether the ASO’s affected by the restructure were either potentially excess or excess.[35]

Consideration of the issues

The Full Court in Workpac summarised the principles applicable to the interpretation of enterprise agreements as follows:

“[t]he starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes… (1989) 30 IR 362 at 378 (French J). The interpretation ‘ … turns on the language of the particular agreement, understood in the light of its industrial context and purpose …’: Amcor Limited v Construction, Forestry, Mining and Energy Union… (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a ‘practical bent of mind’ and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).”[36]

The principles relating to the interpretation of enterprise agreements were also set out in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (Berri).[37]

As noted in both Workpac and Berri the starting point in interpreting an enterprise agreement is the ordinary meaning of the relevant words. In that regard, I make the following observations regarding clause 56 of the Agreement:

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.

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).

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.

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.”[38] 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).
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.

Much was also made by the Applicant in the proceedings of the approach adopted by the AFP in respect of XXXXX X which occurred under the 2012 Agreement. However, as noted below, the workforce adjustment process in the 2012 Agreement differs from the equivalent process in the Agreement in some important respects. More particularly, what occurred in XXXXX X is not relevant to interpreting clause 56 of the Agreement as it does not amount to “post-agreement conduct” in that it was dealt with under the 2012 Agreement nor does it “show that there has been a meeting of minds, a consensus” as per principle 15 in Berri.

As previously noted the AFP relied on the decision of Commissioner Wilson in Brandi. The issue in dispute in Brandi concerned whether or not the applicant in that case had been offered a voluntary redundancy by the AFP; whether the applicant accepted such an offer; and whether the AFP, by virtue of the provisions of the 2012 Agreement was bound to act on the applicant’s acceptance, declare him redundant, and subsequently pay him to leave the AFP.[39] In other words, the matter in dispute is different to the issue to be resolved in this case. Nevertheless, Commissioner Wilson made the following observations regarding the equivalent provision to clause 56 in the 2012 Agreement:

“[98] This context flows through to section 58, Redeployment and Redundancy. On the face of the section and consistent with the formality expressed elsewhere in the 2012 Agreement, a formal reading of the section would lead to the following construction of the processes associated with redeployment and redundancy;

·     Redeployment, reduction in classification and redundancy processes are triggered once an employee is determined by the AFP Commissioner to be ‘excess’, which is defined.
·     There may be a written notification to an employee of a proposal to declare them excess; however this is at the discretion of the AFP Commissioner.
·     On first reading, the section about notification is written as if it is a discretionary requirement when it says the Commissioner may notify an employee in writing of a proposal to declare them excess to the AFP’s requirements. However a construction of the 2012 Agreement as a whole indicates the contrary view; that the written notification is not intended to be discretionary. This is for the reason that the provisions of section 68, (Consultation) would require such notification and consultation in any event. Section 68(4) requires consultation about the introduction of major change that is likely to have a significant effect on employees and section 68(12) defines major change likely to have a significant effect on employees to include the termination of the employment of employees. Section 68(5) requires that the relevant employees are notified of the decision to introduce the change; and section 68(8) requires discussions and information exchange with the relevant employees.
·     A proposal to declare a person excess commences a notification period of 14 days. This period is referred to, very formally, as a “prescribed time period”. During the notification period, the employee may provide a response, raising any issues of concern about the proposed declaration, and the AFP Commissioner must consider the issues raised (which may delay a proposed declaration).

·     At the end of the notification period, the AFP Commissioner may declare the position excess (which period may take three months).
·     The section further provides that having been declared excess an employee must choose either of two options, which are set out as voluntary redundancy or the pursuit of redeployment or reduction options.
·     The section establishes a scheme of voluntary redundancy payments which are separate to payments in lieu of notice. It provides for what occurs where employees opt for redeployment in the case of voluntary redundancy and outlines assistance to which the employee is entitled. The section also sets out a process, and payments for, involuntary redundancy. It provides a scheme for calculating the redundancy entitlements, as well as defining the salary at which redundancy payments are to be made.
[99] Such construction shows five distinct phases to a decision to declare a position excess;
·     A consideration phase - in which certain facts are drawn to the attention of the AFP Commissioner, and a managerial opinion is formed that a position is excess;
·     A notification phase - during which the opinion that a position is excess must be put to the affected employee as a proposal. The employee is entitled to receive information and consultation from the AFP and is entitled to put back such information as they wish;
·     A declaration phase - in which the AFP declares the employee’s position to be excess;
·     An election phase – during which the excess employee can choose, on the one hand, voluntary redundancy, or on the other hand, a three month retention period, during which redeployment or classification reduction options are considered;
·     A redundancy or redeployment or reduction phase - in which the consequences of the employee’s election are implemented.”[40]

However clause 58 of the 2012 Agreement is not identical to clause 56 of the Agreement. For instance, clause 58(3) of the 2012 Agreement provides as follows:

“(3)The Commissioner may notify an Employee in writing of the proposal to declare them excess to the AFP's requirements. The Employee has 14 calendar days to raise any issues of concern relating to the proposed declaration. Where an Employee responds within the prescribed time period, the Commissioner must consider the issues raised. Such consideration may serve to delay the proposed declaration.”

Comparing clause 58 of the 2012 Agreement with clause 56 of Agreement indicates some important differences between the provisions. For instance, the above clause from the 2012 Agreement has been split into clauses 56(3) and (4) in the Agreement and unlike clause 56(4) in the Agreement makes no mention of considering the option of voluntary redundancy at that stage of the process. Accordingly, caution needs to be exercised in placing too much reliance on the decision in Brandi.

Finally, I note that Principle 1 in Berri states among other things that:

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

As previously noted, s.40H(1) of the AFP Act enables the Commissioner to “determine in writing the duties of an AFP employee, and the place or places at which the duties are to be performed.” In other words, the restructure of the ASO Program occurs against the background of s.40H(1) of the AFP Act.

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

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.

Appearances:

A. Howell of Counsel for the Applicant.
V. Bulut of Counsel for the Respondent.

Hearing details:

Canberra.
2019
January 9.

[1] AE428393

[2] PR703076

[3] Exhibit 2 at Annexure VL 3

[4] [2018] FCAFC 131

[5] Transcript at PN851

[6] Exhibits 1 and 2

[7] Transcript at PN115-118

[8] Ibid at PN125

[9] Ibid at PN172-176

[10] AE891991

[11] Ibid at PN211

[12] Ibid at PN235

[13] Ibid at PN239

[14] Ibid at PN255-256

[15] Ibid PN289

[16] Ibid at PN290

[17] Exhibit 3 at Annexure RB-3

[18] [2014] FWC 2284

[19] Exhibit 3

[20] Transcript at PN346-347

[21] Ibid at PN474-480

[22] Ibid at PN484-485

[23] Ibid at PN489

[24] Ibid at PN552-554 and PN649

[25] Ibid at PN576

[26] Ibid at PN579-586

[27] Ibid at PN597-598

[28] Ibid at PN608

[29] Ibid at PN626

[30] Exhibit 4

[31] Transcript at PN727

[32] Ibid at PN736

[33] Ibid at PN739

[34] Ibid at PN742-746

[35] Ibid at PN748-753

[36] [2018] FCAFC 131 at [197]

[37] [2017] FWCFB 3005

[38] Ibid at [114]

[39] [2014] FWC 2284 at [3]

[40] Ibid at [98]-[99]

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