Adam Barcham & Brendon Basford v Commonwealth of Australia as represented by the Australian Federal Police

[2015] FWC 3109

[2015] FWC 3109 [Note: An appeal pursuant to s.604 (C2015/4437) was lodged against this decision - refer to Full Bench decision dated 9 september 2015 [[2015] FWCFB 5617] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Adam Barcham & Brendon Basford and Others
v
Commonwealth of Australia as represented by the Australian Federal Police
(C2014/1702)

COMMISSIONER MCKENNA SYDNEY, 2 JUNE 2015

Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)].

[1] On 15 September 2014, 25 individual applicants named in a schedule to the application (“the applicants”) collectively made an application pursuant to s.739 of the Fair Work Act 2009 (“the Act”) for the Commission to deal with a dispute in accordance with a dispute settlement procedure. At its core, the dispute concerns the differentiated payment of a certain allowance.

[2] The respondent to the application is the Commonwealth of Australia as represented by the Australian Federal Police. The respondent has objected to the application, submitting, among other matters, there is a lack of jurisdiction.

[3] The relevant industrial instrument identified in the application is the Australian Federal Police Enterprise Agreement 2012-2016 (“the current Agreement”), which is a successor agreement to the previous Australian Federal Police Collective Agreement 2007-2011 (“the old Agreement”).

[4] Clause 70 of the current Agreement contains a dispute resolution procedure which relevantly reads at cl.70(1):

“70 Dispute Resolution

(1) For the purposes of preventing and settling disputes arising from this Agreement, the dispute resolution procedures will be followed. ...”

[5] The reference within cl.70(1) to disputes arising from this Agreement was the focus of the respondent’s jurisdictional objection. Shortly stated, the respondent submits that, to the extent there is a dispute, the dispute does not arise from the current Agreement - with the result the Commission’s jurisdiction to deal with the dispute is not invoked. The applicants submit there is no want of jurisdiction to deal with the dispute.

[6] The parties lodged written outlines of submissions, which were elaborated by way of further oral submissions on 29 April 2015 - being oral submissions which, by and large, amplified matters already addressed in the written submissions. What follows is an overview of the submissions advanced by the parties, which also includes the history of matters, drawn principally from their written outlines of submissions.

Respondent’s submissions

[7] The respondent noted the application is made under s.739 of the Act, an application for the Commission to deal with a dispute in accordance with a dispute settlement procedure. In this regard, the respondent drew attention to the provisions of cl.70(1) of the current Agreement, particularly the words “arising from” the current Agreement. The respondent’s submissions continued that “it is claimed that the dispute relates to” cl.38of the current Agreement.

[8] Referring to the initiating process, the respondent submitted the dispute relates to the non-payment of a deployment assistance allowance (“the allowance”) in circumstances where the applicants were assigned to work at Sydney Airport and, the applicants claim, were “improperly not paid” the allowance pursuant to the old Agreement, in breach of that Agreement.

[9] By way of background the respondent outlined a history to certain matters, including the following:

• The determination referred to in cl.38 of the current Agreement was originally issued on 5 April 2007 and it was made under cl.27 of the old Agreement. It was specified to apply “to AFP employees of a class described in Schedule 1 at the rate applicable” and Schedule 1 specifies in relation to members, the location of “Sydney office”.



• The determination was amended in July 2010 to include Sydney Airport as a location at which the allowance would be paid, but only for employees who were in receipt of the allowance at the Sydney office in Goulburn Street, Sydney (“Sydney Headquarters”) and relocated to Sydney Airport.



• No determination was ever made amending the allowance determination so that it applied generally to employees located at Sydney Airport.



• At the commencement of the current Agreement, the applicants were not in receipt of the allowance under the old Agreement.

[10] The respondent referred to a number of authorities as to applicable principles for the construction of industrial instruments, including DP World Brisbane Pty Ltd v Maritime Union of Australia[2014] FWCFB 7889 at [29] to [34] and DP World Brisbane Pty Ltd v Maritime Union of Australia[2013] FWCFB 8557 at [23]. After recounting the “key elements” distilled from these authorities regarding the construction or interpretation of industrial instruments, the respondent submitted the Commission’s task is objectively to ascertain what the parties intended both cl.70 and cl.38 of the current Agreement to mean; and further submitted the parties’ subjective beliefs and understandings are not relevant.

[11] The respondent submitted the Commission does not have powers at large to deal with a dispute. The powers of the Commission to deal with a dispute under s.739 of the Act are limited to those conferred by the relevant industrial instrument. In this regard, the respondent submitted the Commission’s first task in this matter is to properly characterise the dispute that has been raised by the applicants, and consider whether it is a dispute arising from the current Agreement.

[12] The respondent contended the dispute does not arise from the current Agreement, and the true character of this dispute was identified in the initiating process - namely, that the applicants “were improperly not paid that allowance pursuant to the 2007-2011 Agreement in breach of that Agreement.” As to this, the respondent denied any such breach occurred but, in any event, a dispute about whether there was a breach of the old Agreement cannot be a dispute arising from the current Agreement and cannot be dealt with by the Commission as such. For completeness, the respondent further submitted the Commission has no jurisdiction to deal with a dispute about whether there had been a breach of the old Agreement under the terms of that agreement given the operation of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

[13] The respondent submitted that although the applicants have more recently suggested the dispute concerns the proper interpretation of cl.38 of the current Agreement, the Commission should not accept there is a real dispute about interpretation simply because the applicants may so contend. The Commission should instead determine whether a dispute exists based on all the circumstances. The respondent submitted that in the current circumstances the Commission should not accept there is a genuine dispute about interpretation for the following reasons:

• It is contrary to what the applicants said the dispute is about in the initiating process.



• The respondent agrees with the applicants that cl.38 of the current Agreement reflects an obligation to continue to pay the allowance to all persons who were receiving it pursuant to the old Agreement.



• It is inherently implausible there is a genuine dispute concerning the interpretation of cl.38 of the current Agreement because the words of that clause are clear and unambiguous, and it would be contrary to accepted principles of the interpretation of industrial instruments to find to the contrary.



• The interpretation contended for by the applicants requires a re-writing of cl.38 to create a new entitlement to the allowance for the applicants which is neither present in, nor contemplated by, the current Agreement. Clause 38 serves only to preserve any existing entitlement to the allowance under the old Agreement.

[14] The respondent submitted the Commission should conclude that what the applicants seek is properly characterised as either a remedy for an alleged breach of the old Agreement or the arbitration of a new entitlement to the allowance - neither of which can be properly characterised as being matters arising from the current Agreement. The Commission, the respondent submitted, should find that there is no jurisdiction to deal with the dispute and dismiss the application.

Applicants’ submissions

[15] The applicants submitted this is not an application seeking that the Commission re-write the current Agreement, add words or meaning to it, or alter it in any way. Rather, the application seeks the “intercession” of the Commission to ensure the consistent application of the current Agreement. This is a function of the Commission that is, the applicants submitted, clearly within jurisdiction and one the Agreement calls upon the Commission to exercise.

[16] This dispute is, the applicants submitted, about adjudication on the exercise of discretion in circumstances where that discretion should be exercised in accordance with the anticipation of the parties. The dispute settlement clause of the current Agreement is drafted so that discussion, and upon its failure, adjudication, will be applied to this conduct within the Agreement in accordance with the principles of exercise discussed in Silverbrook Research Pty Ltd v Lindley [2010] NSWCA 357 at [5]-[6] per Allsop P (“Silverbrook”):

“5 The task then is to value that loss of opportunity or chance. This process begins with a proper understanding of the contractual content of the obligations and entitlements arising out of cl 4 and in particular cll 4.2 and 4.3. That the decision as to whether the respondent should receive the bonus was “entirely within the discretion of” the appellant should not be construed so as to permit the appellant to withhold the bonus capriciously or arbitrarily or unreasonably; it should not be construed so as to give the appellant a free choice as to whether to perform or not a contractual obligation. The relevant discretion should be understood against the proper scope and content of the contract. This was a bargained for bonus to be assessed against set objectives. Such a clause should receive a reasonable construction and not permit the appellant to choose arbitrarily or capriciously or unreasonably that it need not pay money the set objectives having been satisfied: Greaves v Wilson (1858) 25 Beav 290 at 293; 53 ER 647 at 650; Stadhard v Lee (1863) 3 B & S 364 at 371-372; 122 ER 138 at 141; Gardiner v Orchard [1910] HCA 18; 10 CLR 722; Carr v J A Berriman Pty Ltd [1953] HCA 31; 89 CLR 327; Selkirk v Romar Investments Ltd [1963] 1 WLR 1415 at 1422-1423; Godfrey Constructions Pty Ltd v Kanangra Park Pty Ltd [1972] HCA 36; 128 CLR 529 at 538, 543, 547 and 549-555; Pierce Bell Sales Pty Ltd v Frazer [1973] HCA 13; 130 CLR 575.

6 The discretion is to be exercised honestly and conformably with the purposes of the contract. There may be many circumstances in which it would be legitimate, and conformable with the purposes of the contract, not to pay the bonus. There may be financial stringency or misbehaviour by the respondent or some other consideration. It is unnecessary to explore the possibilities in detail. What, however, would not be permitted is an unreasoned, unreasonable, arbitrary refusal to pay anything, come what may. This would be a denial of the very clause that had been agreed. If these parties wished to make payment under the clause entirely gratuitous and voluntary such that payment could be withheld capriciously, notwithstanding the compliance with solemnly set objectives they needed to say so clearly.”

[17] The applicants submitted it is within the jurisdiction of the Commission to adjudicate on a clause in an enterprise agreement so as to make it workable, although it would not be within the jurisdiction to adjudicate so as to change a clause. On the other hand, it is a correct construction of the jurisdiction of the Commission to interpret a clause in this context so as to remove an absurdity, an unintended inconsistency or some other contradiction. Effect can and should be given to the reasonable agreement of the parties. To illustrate, the applicants’ submissions outlined hypothetical scenarios in such respects - such as where an employee erroneously may have been paid the allowance under the old Agreement. In such a scenario, the insinuation of the word “correctly” in the relevant clause would make the words workable and reflective of what was agreed, based on the reasonable contemplation of the parties; it would not change the Agreement.

[18] The applicants’ submissions continued that there is no scope for the Commission to countenance persons profiting from the rigid application of words whereby the reasonable intention of the parties could be thwarted. Any dispute as to such a course, by employees concerned, would be misplaced. This case is the opposite in application, but based on the same principle. The applicants were, it was submitted, improperly not in receipt of the allowance under the old Agreement and they seek that the impropriety not be continued.

[19] The workability of the words must be stressed to reflect what the reasonable agreement must be, and here there was no agreement to absurdity or inconsistency; they could have so agreed, but, if that is contended, the considerations discussed in Silverbrook at [6] arise: “If these parties wished to make payment under the clause entirely gratuitous and voluntary such that payment could be withheld capriciously, notwithstanding the compliance with solemnly set objectives they needed to say so clearly”.

[20] There exists a set of inconsistencies and practical absurdities which should have been remedied by discussion, but cannot be. Therefore, the jurisdiction of the Commission must be invoked. The inconsistencies and absurdities are:

• Due to a decision of the respondent, persons deployed to Sydney were given a “high cost area allowance” upon graduation from the Federal Police Academy (“the Academy”) by internal determination on 5 April 2007.



• This determination was varied on 23 December 2010, during the currency of the old Agreement.



• During the currency of the old Agreement, some graduates sent to Sydney were, for the first time, deployed to Sydney Airport instead of Sydney Headquarters. Previously, all graduates had been sent to Sydney Headquarters. The determination was that the allowance would be paid at Sydney Headquarters. Importantly, this group comprised the first sworn federal police to be sent to Sydney Airport due to a reorganisation. They replaced State police and members of the then-disbanded protective service.



• This meant that a financial disability was remedied for some graduates but not for others, notwithstanding that those working at Sydney Airport were actually incurring higher costs than those working at Sydney Headquarters (e.g. due to lack of public transport).



• The inconsistency grew worse. Persons were relocated from Sydney Headquarters to Sydney Airport and kept the allowance, and worked side-by-side with persons not receiving the allowance. Persons were relocated from Sydney Airport to Sydney Headquarters, but were not given the allowance and worked side-by-side with persons who were receiving the allowance.

[21] The applicants submitted they acknowledge and accept that the parties to both the old Agreement and the current Agreement could have agreed to such arbitrariness and inconsistency. If that was to be so, however, the Agreement must have said so clearly.

[22] The discretion provided in the old Agreement was, in actuality, that the Commissioner of the Australian Federal Police (“the Police Commissioner”) would decide what constituted a “high cost area”. The Police Commissioner’s discretion was, it was respectfully submitted, “oddly applied”. It declared Sydney to be high cost, but when deployments to Sydney included Sydney Airport, that location was determined not to be high cost. It was, however, held to be high cost by a further determination, but only for persons who previously had been receiving the allowance at Sydney Headquarters.

[23] If Sydney is high cost, but only at Sydney Headquarters and not at Sydney Airport, the applicants noted that how that is contended was never stated by the respondent and no explanation has ever been given by the respondent for this discrepancy. The determination was applied oddly and without explanation. No reasonable person would have agreed to such a license - resulting in the unavoidable assessment that the discretion was exercised pursuant to the provisions of the old Agreement, but the error there committed was well-within the scope of the dispute settlement procedure of that Agreement, which included adjudication by this Commission.

[24] It is then impossible, the applicants submitted, to read the current Agreement without reference to the old Agreement. The words are clearly contemplated, in cl.38(3) of the current Agreement, to provide for a continuation. To make the reading of the clause reasonable and appropriate, the word “correctly” must be applied. The parties would not reasonably have agreed to a continuation of the payment if an employee was in receipt of the allowance by some error or other excess. Nor is it an agreement to endorse a discretion applied erroneously or illogically. If it was, then it needed to be said clearly.

[25] For cl.38 of the current Agreement to have been a correct reflection of an agreement between two reasonable groups, it must have been intended to mean that the provision for the allowance would continue, albeit with the limitations set down within cl.38: the employee had to be already receiving it under the old Agreement; no one would receive it in the future; and those now receiving it would lose it when they relocated.

[26] It is a simple and unremarkable construction of the old Agreement and its continuation in the current Agreement that the incorrect exclusion - arising from manifest illogicality and inconsistency - from the allowance of those who should, but did not, receive it should and can be remedied.

[27] The Commission has jurisdiction to make the current Agreement work without changing it, but does not have jurisdiction to endorse the continuation of “a bemusing and illogical error”.

[28] The dispute that exists, and on which adjudication is sought (since all the processes under the dispute settlement procedures have failed to resolve the dispute), applies under the current Agreement. The Commission is asked to give effect to the words in the current Agreement so as to read what a reasonable person would understand them to read: “... if an employee is [or should be] in receipt ...”.

[29] If persons were receiving the allowance but should not have been, then the word “correctly” would have been sought as an implied inclusion to make the clause workable and equitable. Indeed, to cater for some circumstance where it is later discovered that someone has been receiving the allowance and is not, say, deployed to the Sydney area, the words could be reasonably inferred to mean, “... if an employee is [correctly] in receipt, [or should be in receipt] ...”. This is a simple interpretation that embraces the meaning of the allowance clause, and its correct and reasonable intention. Application of workability does not require a re-writing to create a new entitlement. It is, in fact, an interpretation to ensure the application of the actual entitlement.

[30] The applicants submitted the adoption of the approach they advocated closely follows the principles of the Commission; it is the Commission’s task to ascertain in an objective manner what the parties intended the two clauses to mean, and such intended meaning involves consistent, logical and reasonable application of discretion.

[31] In response to a number of the respondent’s submissions, the applicants submitted:

• The application does not seek any change to meaning. What is sought is what an objective, reasonable person would hold the words to mean. The ordinary meaning, within their context and purpose, is the construction sought.

• Surrounding circumstances or context exist here. On the other hand, it is not ambiguous or an additional construction to infer the interpretive words they propose to make cl.38 of the current Agreement workable.



• The application is not about subjective beliefs or understandings. Based on Silverbrook and the authorities cited therein, the obligation of those with discretion is clear. The applicants ask that the obligation be correctly exercised - in this case at the direction of this Commission. This is an objective assessment, not a subjective statement of attitude.



• The applicants agree with the respondent’s submission that the meaning of the provision is to be determined with regard to what a reasonable person would have understood it to mean, with this usually requiring consideration not only of the text, but also of the surrounding circumstances known to the parties and the purpose and object of the transaction. The applicants submitted that what they suggest is unarguable. A reasonable person would not have understood the words to mean “incorporation at will of inconsistency and illogicality”, or some other unmeritorious construction. They seek that the purpose of the transaction – compensation for an identified factor – be considered. The surrounding circumstances known to the parties all but go without saying: Mascot (the suburb where Sydney Airport is located) is in Sydney.



• The applicants do not seek a provision that is not already in the current Agreement to be inserted or an application of an “anteriorly derived notion”. They do not seek to have the Agreement changed; they seek to have it applied.



• The dispute is about the correct application of cl.38 of the current Agreement.

[32] The applicants’ submissions referred also to certain correspondence of 13 November 2014 to the respondent and placed reliance on the principles therein discussed in suggesting most strongly that this case invites the Commission to adhere to them. The applicants further submitted that resolution of the anomaly concerning the allowance will have no flow-on effect given that the relevant group comprises the 25 persons who were sent to Sydney Airport from the Academy between August and December 2011. There were no persons deployed from the Academy direct to Sydney Airport before then, and persons deployed after then are covered entirely by the current Agreement and so are not eligible. No one else will be eligible.

[33] The applicants submitted, in conclusion, this is an application for the Commission to exercise its jurisdiction, and to do so for the direct purpose of removing an anomaly which has affected a small and finite group of persons. The current Agreement is in force and must be correctly applied by the intervention of the Commission.

Respondent’s submissions in reply

[34] The respondent submitted the applicants’ submissions identify the dispute as being about the allegedly improper non-payment of the allowance to the applicants under the old Agreement because the Police Commissioner did not exercise his discretion under cl.27 of that Agreement to nominate Sydney Airport as a high cost area and, in so doing, noted certain of the applicants’ submissions, namely: “this is about adjudication on the exercise of discretion within the Agreement, where that discretion should be exercised in accordance with the anticipation of the parties” and “the obligations of those with discretion is clear ... we ask that the obligation be correctly exercised, in this case at the direction of the Commission”. The respondent highlighted aspects of the applicants’ submissions which, the respondent submitted, supported the view the dispute, properly characterised, concerned the exercise of the Police Commissioner’s discretion under the old Agreement and does not concern the current Agreement.

[35] The respondent submitted that to the extent the applicants seek to address cl.38 of the current Agreement they “appear to allege” that because cl.38(3) refers to the old Agreement it is a “continuation” of the former cl.27 and, accordingly, the Commission may act to remedy the fact the applicants were not formerly paid the allowance. The respondent submitted that, apart from lending further support to the proposition that the dispute is about the exercise of the discretion under the old Agreement, the applicants’ submissions are incorrect in contending cl.27 of the old Agreement is continued under the current Agreement. The reference in cl.38(3) of the current Agreement is, the respondent submitted, a simple mechanism to identify a particular class of employees.

[36] As to the applicants’ submissions concerning workability, absurdity, unintended inconsistency, contradiction and reasonable agreement, and the applicants’ submission that the Commission must interpret cl.38 such that it should be read to mean that if an employee is or should be in receipt of the allowance, the respondent submitted that such submissions are misguided. For instance, the respondent submitted, cl.38 is clearly workable on its terms and has a plain, clear and unambiguous meaning; and does not contain any absurdity. The clause identifies that employees who were in receipt of the allowance under the old Agreement at the commencement of the current Agreement are entitled to continue to receive that allowance.

[37] The respondent submitted there is no merit to the applicants’ submission that the plain meaning of cl.38 could not reasonably have been agreed or intended by the parties, considered, for example, in the context of the principles of interpretation set out in The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited [2014] FWCFB 7447 at [41]. The applicants are clearly asking the Commission to re-write cl.38 to vary the class of employees it identifies.

Consideration

[38] It is relevant to first consider the provisions of s.739 of the Act, which reads as follows (with notes legislative omitted):

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[39] The current Agreement’s dispute settlement procedure is identified in the application as being the industrial instrument clause by which the dispute is referred to the Commission. As noted earlier, cl.70 of the current Agreement contains a dispute resolution procedure which relevantly reads at cl.70(1) that: “For the purposes of preventing and settling disputes arising from this Agreement, the dispute resolution procedures will be followed.” I turn now to the provisions of the old Agreement and the current Agreement.

[40] Clause 27 of the old Agreement read as follows:

“27. DEPLOYMENT ASSISTANCE ALLOWANCE (DAA)

154. A deployment assistance allowance (DAA) of up to 5% of base salary up to maximum of $5000 per annum (paid pro-rata on a fortnightly basis in normal pay), calculated over a financial year, will be paid to classes of employees who are deployed to a high cost area, and/or where difficulties exist in attracting or retaining employees in an area, either of which are nominated by the Commissioner. In exceptional circumstances, the Commissioner may authorise a higher DAA.

155. DAA will not count as salary for superannuation.”

[41] The old Agreement no longer applies to the applicants or the respondent; it was replaced by the current Agreement. I accept the Commission has no jurisdiction - by whatever mechanism might otherwise be proposed by the applicants under the auspices of this application to deal with a dispute pursuant to s.739 of the Act - to now determine whether the applicants were, or should have been, entitled to the allowance under cl.27 of the old Agreement.

[42] The current Agreement deals with the allowance in the following terms:

“38. Deployment Assistance Allowance

(1) Under the Collective Agreement 2007-2011, the Commissioner determined a Deployment Assistance Allowance would be paid to an Employee or group of Employees who were assigned or deployed:

(a) to a high cost area;

(b) where difficulties exist in attracting or retaining Employees in a specified area; or

(c) in order to meet an AFP business requirement or priority.

(2) The Deployment Assistance Allowance was paid up to a maximum of $5000 per annum (paid pro rata on a fortnightly basis), calculated over a financial year.

(3) At the commencement of this Agreement if an Employee is in receipt of Deployment Assistance Allowance under the Collective Agreement 2007-2011, Determination 2/2007, they will continue to receive that allowance until the payment of Deployment Assistance Allowance is reviewed.

(4) Where an employee is in receipt of a Remote Localities Allowance no Deployment Assistance Allowance, in any form, is payable.

(5) If an Employee, in sub-section (3), is receiving Deployment Assistance Allowance and moves location, no Deployment Assistance Allowance is payable in the new location.

(6) A Deployment Assistance Allowance will not count as salary for superannuation.

(7) Deployment Assistance Allowance will be reviewed within the first 12 months of the life of this Agreement.”

[43] Although there may be other characterisations appropriately available, cl.38 of the current Agreement is a preservation or savings-type arrangement. It is a clause which provides that if, at the commencement of the current Agreement, an employee was in receipt of the allowance under the old Agreement he or she will continue to receive that allowance until the payment of the allowance is reviewed.

[44] As the respondent submitted, cl.38 of the current Agreement is clear in its terms and, in accordance with the well-established principles of interpretation - which do not need to be traversed here - is to be given its plain meaning. It suffices to note the clause does not within terms provide for, or otherwise envisage, the exercise of any discretionary or expanded bestowal of the allowance to the applicants (and, I accept, the circumstances of the bestowal of the allowance under the old Agreement to one group of employees but not the other cannot be revisited or re-determined through the application now before the Commission).

[45] This is so even accepting the applicants’ submission there were (and continue to be) seemingly quite incongruous outcomes whereby the allowance was paid to one group of employees but not to the other group even though the respective groups’ work locations were in geographically-proximate areas of Sydney and, in some instances, members of the respective groups have co-located in the same Sydney workplaces but with only some employees having the benefit of the allowance.

[46] On a consideration of the matters advanced in the parties’ respective submissions, I accept the key matters advanced in the respondent’s submissions concerning jurisdictional matters. I also consider the applicants’ concerns about the differentiated payment of the allowance are understandable and reasonable. As matters were put in correspondence to the respondent of 13 November 2014 on behalf of the applicants:

“This failure to pay the Allowance for this small group has had a number of results, which together create this serious inconsistency:

1. All persons who were deployed to Sydney prior to August 2011 receive the allowance, wherever they serve currently in Sydney. None were sent to Kingsford Smith for their first deployment prior to then.

2. Even if these persons were later (as is relevant here) deployed to Kingsford Smith Airport, they continued, and continue now, to receive it.

3. From August 2011, all persons who were deployed to Sydney continued to receive it, except for those who were deployed to Kingsford Smith Airport for their first deployment, who have never received it, no matter where they now work in Sydney.

4. Whether or not one class mate from the College in a team receives $5,000 a year more or less than another in the same team, arises solely from the coincidence of their first deployment between August and December 2011.

5. The disparity is only for this small group. Longer serving persons all consistently receive it, and shorter serving persons (deployed from the beginning of 2012) consistently do not.”

[47] Nonetheless, the respondent’s objection to the application on jurisdictional grounds has been made out and, for that reason, the application is dismissed.

COMMISSIONER

Appearances:

C. McArdle, solicitor, for the applicants.

M. Campbell, solicitor, for the respondent.

Hearing details:

2015.

Sydney;

April, 29.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR567068>