Adam Barcham v Commonwealth of Australia as represented by the Australian Federal Police
[2015] FWCFB 5617
•9 SEPTEMBER 2015
| [2015] FWCFB 5617 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Commonwealth of Australia as represented by the Australian Federal Police
(C2015/4437)
VICE PRESIDENT HATCHER |
|
Appeal against decision [2015] FWC 3109 of Commissioner McKenna at Sydney on 2 June 2015 in matter number C2014/1702.
[1] This decision reproduces in edited form the decision and reasons which were stated on transcript at the conclusion of the hearing conducted in relation to this matter on 20 August 2015.
[2] The appellants in this matter, who are 24 individuals employed by the Commonwealth of Australia in the Australian Federal Police, apply for permission to appeal and appeal a decision of Commissioner McKenna issued on 2 June 2015 1 (Decision).
[3] In the Decision the Commissioner dismissed on jurisdictional grounds an application lodged by 25 individuals (the 24 appellants plus one other) pursuant to s.739 of the Fair Work Act 2009 (FW Act) for the Commission to deal with a dispute in accordance with the dispute resolution procedure in the Australian Federal Police Enterprise Agreement 2012-2016 (2012 Agreement).
[4] The dispute identified in the s.739 application concerned the payment of an allowance, described as a “Deployment Assistance Allowance” (Allowance), provided for in a predecessor enterprise agreement, the Australian Federal Police Collective Agreement 2007-2011 (2007 Agreement). Clause 27 of the 2007 Agreement provided that the Allowance was payable 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”. The 25 applicants claimed that, having been deployed to work at Sydney Airport, they should have received the Allowance, particularly in circumstances where all persons who were deployed to the respondent’s Sydney office prior to August 2011 were paid the allowance even if later deployed to Sydney Airport before the 2012 Agreement commenced.
[5] The respondent contended before the Commissioner that the Commission had no jurisdiction to deal with the dispute. In relation to, among other things, terms of enterprise agreements providing a procedure for dealing with disputes, s.739(3) of the FW Act provides:
739(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
[6] The respondent contended that there was a relevant limitation contained in the dispute resolution procedure in clause 70 of the 2012 Agreement, namely that the procedure only applied to “disputes arising from this Agreement”. The respondent’s submission was that because there was no equivalent to clause 27 of the 2007 Agreement contained in the 2012 Agreement, the dispute was not one which arose from the 2012 Agreement, but was in truth one concerning an alleged breach of the 2007 Agreement. The Commissioner upheld this submission in dismissing the application.
[7] The appellants contend that the Decision was in error. In that connection, they point to clause 38 of the 2012 Agreement. Clause 38 provides:
“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.”
[8] The appellants submit in their appeal, as they did before the Commissioner, that the dispute arises from clause 38(3) of the 2012 Agreement. This submission is based on the proposition that clause 38(3) was to be construed as if the words “… if an employee is in receipt of Deployment Assistance Allowance…” were to be read as meaning “if an employee is reasonably and correctly, or reasonably and correctly should be in receipt of Deployment Assistance Allowance”. Read this way, the appellants submitted, a dispute about whether they should have received the Allowance under the terms of the 2007 Agreement was one which arose from the 2012 Agreement.
[9] That submission must be rejected. The meaning of clause 38(3) of the 2012 Agreement is plain. It provides that any employee who, as a matter of fact, was in receipt of the Allowance provided in clause 27 of the 2007 Agreement at the time of commencement of the 2012 Agreement will continue to receive the Allowance until a review is conducted.
[10] There is no warrant to read the provision as if it contained the additional words suggested by the Appellants. The provision is not ambiguous, and no additional words need to be read into it to render it intelligible. The proposed additional words would change the plain meaning of the clause, and effectively rewrite it.
[11] It was also submitted that the reference in clause 38(3) to “Determination 2/2007” made by the Commissioner pursuant to clause 27 of the 2007 Agreement concerning the classes of employees who were eligible to receive the Allowance in some sense “incorporated” that Determination into the 2012 Agreement. This is rejected. It is clear that the reference to the Determination is only for the purpose of identifying those who were in receipt of the Allowance at the commencement of the 2012 Agreement.
[12] The dispute is properly to be characterised as one concerning whether the appellants should have received the Allowance pursuant to clause 27 of the 2007 Agreement. There is no dispute about the operation of clause 38 of the 2012 Agreement.
[13] It is not in dispute that the Appellants were not in fact in receipt of the Allowance as at the commencement of the 2012 Agreement. Therefore it cannot be said that there is any dispute concerning, or arising out of, clause 38 of the 2012 Agreement.
[14] The Commissioner’s conclusion that there was no jurisdiction to deal with the dispute under the dispute resolution procedure in the 2012 Agreement was clearly correct. No arguable case to the contrary has been advanced.
[15] Permission to appeal is refused.
[16] We add two observations however:
(1) It is of course open to the appellants, if they contend that the 2007 Agreement was contravened, to commence relevant proceedings before the Federal Circuit Court of Australia.
(2) We express no view as to whether it would have been open to the Appellants to make a s.739 application for the Commission to deal with a dispute under the provisions of the 2007 Agreement. Nor is anything in the Decision under appeal to be read as expressing such a view. We note that the respondent conceded that the appellants had taken steps to agitate their dispute about the Allowance prior to the expiry of the 2007 Agreement.
VICE PRESIDENT
Appearances:
C. McArdle solicitor for the Appellants
D. Lloyd solicitor and E. Forbes for the Respondent
Hearing details:
2015.
Sydney:
20 August.
1 [2015] FWC 3109
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