Bernard Terence Bastian Pulle v Commonwealth of Australia acting through the Department of Parliamentary Services

[2013] FWC 5594

[2013] FWC 5594

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Bernard Terence Bastian Pulle
v
Commonwealth of Australia acting through the Department of Parliamentary Services
(C2010/5258)

Commonwealth employment
VICE PRESIDENT LAWLER	CANBERRA, 12 AUGUST 2013

Dispute Resolution – calculation of quantum of arbitral award.

[1] Mr Pulle referred a dispute to Fair Work Australia pursuant to the dispute resolution procedure in an enterprise agreement. That dispute was arbitrated by the Commission. In the decision ([2011] FWA 7462), I made the following determination.

1. Mr Pulle is to receive a Secretary’s allowance under clause 197 of the 2008 Agreement that:

(a) Compensates Mr Pulle for the non receipt of employer superannuation contributions for an employee with his substantive classification (PEL 1) from 6 October 2002, including an amount referable to interest calculated at the Reserve Bank reference rate at fortnightly rests, but with full allowance being made against the principal amount for each payment of the Secretary’s allowance received by Mr Pulle in the period to 6 April 2006.

(b) Provides Mr Pulle with an ongoing fortnightly allowance equivalent to the employer superannuation contributions for an employee with his substantive classification.

2. To the extent that the parties are unable to agree those amounts the matter can be relisted for an arbitral determination of those amounts by Fair Work Australia.

[2] The parties were unable to agree the gross amount reflecting determination 1(a). The matter was relisted and it was agreed between the parties that the matter would be determined on written submissions.

[3] This decision should be read in conjunction with the reasons in [2011] FWA 7462.

[4] DPS contends that amount referred to in determination 1(a) is the amount of employer superannuation contributions that it was obliged to contribute for an employee of Mr Pulle’s classification who was a member of the fund at the time of each payment (together with interest).

[5] Mr Pulle contends that the amount required by determination 1(a) is far greater. In effect, his calculation proceeds on an assumption that the amount in question should be calculated as if he had continued to be entitled to be a member of the PSSdb fund beyond the age of 70 and was entitled to benefits as a continuing member of the fund.

[6] The calculation approach of DPS reflects what was intended by determination 1(a). I generally agree with the submissions on behalf of DPS.

[7] I accept that the calculation approach of DPS does not place Mr Pulle in the same position he would be in if he was entitled to continue his membership of the fund and to continued to receive employer contributions as a fund member and receive benefits as a fund member.

[8] However, Mr Pulle ceased to be a member of the PSSdb fund when he turned 70 and has been ineligible to be a member ever since. The Primary Decision proceeded on basis that this was the legal position. In other words, it was not a decision about whether Mr Pulle was entitled to continue his membership of the PSSdb and continue to receive benefits as a member. Rather, it was a decision about whether, given Mr Pulle’s ineligibility beyond the age of 70, the Secretary should have exercised the discretion to grant a special allowance to Mr Pulle given that he was not eligible to be a member of the fund. I noted that the operation of legislation meant that the contributions referable to Mr Pulle made by DPS after Mr Pulle turned 70 were returned to Consolidated Revenue. I saw it as unfair for Mr Pulle not to receive any benefit from the amount contributed when all employees less than 70 received a benefit and for the Commonwealth instead to obtain a windfall benefit in the form of the contributions referable to Mr Pulle returned to Consolidated Revenue.

[9] I consider that, putting aside the interest calculation, it would not be fair to require DPS to pay more as a gross amount than the gross amount of superannuation contributions it was obliged to make over the period since Mr Pulle turned 70 in respect of an employee in Mr Pulle’s classification. I agree with the summary of purpose in paragraph 7.8 the DPS submissions in reply of 15 March 2013:

“Fundamentally, the purpose of the decision was not to put Mr Pulle in the position he would have been in had Australia’s public sector superannuation laws being entirely different from what they in fact were. The purpose was to put Mr Pulle in the same position with respect to total remuneration as employees at the same classification as Mr Pulle who are younger than Mr Pulle and thus eligible to recvie employer superannuation contributions.”

[10] I do not place any reliance on paragraph 7.10 of those submissions.

[11] The approach outlined in the submissions on behalf of DPS of 22 January 2013 takes proper account of the period in which a secretary’s allowance was paid to Mr Pulle and the impact of clause 217 of the 2008 Agreement for the period from 2 October 2008 to 10 November 2011. I am not persuaded that such an approach results in any unjust enrichment of the Commonwealth or that the doctrine of quantum merit has any relevant application.

[12] I determine that the quantum payable to Mr Pulle pursuant to determination 1(a) of [2011] FWA 7462 is the amount calculated in accordance with the approach adopted by DPS in its submission and spreadsheet of 22 January 2013. Both the gross amount referable to past, and ongoing allowance payments to Mr Pulle, are gross amounts that will be subject to tax in accordance with law. I have not sought to update the spreadsheet to address the position after 10 November 2011. I assume that this is a matter of simple mathematics that should not be contentious. In the event that there is disagreement over the correct figure, I direct DPS to file and serve and updated spreadsheet and I will determine the precise dollar amount.

VICE PRESIDENT

Appearances:

Mr B.T.B. Pulle on his own behalf

Mr P. Vane-Tempest and Mr J. Lovell on behalf of the Respondent

Final written submissions:

15 March 2013

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