Brennan O'Brien v Department of Human Services
[2012] FWA 5678
•12 JULY 2012
[2012] FWA 5678
The attached document replaces the document previously issued with the above code on 12 July 2012.
● The names of the parties who appeared has been corrected.
Cathy Bartlett
Associate to Deputy President Smith
Dated 12 July 2012.
[2012] FWA 5678 |
|
DECISION |
Workplace Relations Act 1996
s.170LW—pre-reform Act—Application for settlement of dispute (certified agreement)
Brennan O’Brien
v
Department of Human Services
(C2011/6828)
DEPUTY PRESIDENT SMITH | MELBOURNE, 12 JULY 2012 |
Alleged dispute concerning out of pocket expenses not being reimbursed.
INTRODUCTION
[1] The Community and Public Sector Union (CPSU) believe that the Victorian Public Service Agreement 2006 (2009 extended and varied) [the Agreement] requires the department of Human Services (DHS) to reimburse employees for the cost of renewing their Working With Children Check (WWCC).
[2] This matter is raised on behalf of Mr B O’Brien.
[3] DHS argue that no such obligation exists under the agreement.
[4] The parties have sought to conciliate the matter but regrettably did not reach agreement and as such, seek a determination by the Tribunal in accordance with the dispute settlement procedures of the Agreement. The CPSU rely upon clause 31 of the Agreement which provides:
“31 REIMBURSEMENT OF EXPENSES
31.1 General provisions
31.1.1 The Employer will reimburse the Employee his or her reasonable out of pocket expenses actually and necessarily incurred in the course of his or her authorised duties.
31.1.2 The Employer must apply the rulings of the Commissioner of Taxation (Australian Tax Office) relating to reasonable allowances in determining the maximum rates payable, unless otherwise agreed.
31.1.3 The amount of an expense will be considered reasonable where it does not exceed the relevant amounts set by the Australian Tax Office as adjusted from time to time.”
[5] It is submitted by the CPSU that the WWCC is a reasonable out of pocket expense that is actually and necessarily incurred in the course of the employee’s authorised duties as a Child Protection Worker 1.
[6] DHS argue that:
- the ordinary meaning of words;
- the context and placement of the clause and
- the circumstances surrounding the drafting of the Agreement;
mean that the clause does not require it to reimburse an employee who renews their WWCC 2.
BACKGROUND TO THE WWCC
[7] The Working with Children Act 2005 (Vic) came into effect on 3 April 2006. A person engaged in child related work may apply to the Secretary of the Department of Justice for a WWCC. It is an offence for a person to engage in child related work without a current Check and it is an offence for an employer to knowingly employ a worker who does not hold a current WWCC on child related work 3.
[8] When this was introduced DHS decided to pay for the initial WWCC for all existing employees. New employees were required to obtain the WWCC at their own expense 4.
APPROACH TO CONSTRUCTION
[9] It is well settled that an agreement:
- must be construed according to the ordinary and natural meaning of the words 5;
- should be examined in its context and setting 6; and
- should be construed using a purposive approach to seek to produce a sensible industrial outcome 7.
EVIDENCE AND SUBMISSIONS
[11] There were two witnesses - Mr W Townsend (Senior Industrial Officer CPSU) and Mr J Maddison (Assistant Director of Workplace Relations in DHS). Only Mr Townsend was cross-examined.
[12] In relation to the issue of the WWCC both Mr Townsend and Maddison agreed that:
- the CPSU made a specific claim to amend the reimbursement of the expense clause to require the employer to pay for WWCC in the 2007 negotiations;
- the CPSU pursued this claim in the 2012 negotiations; and
- the State of Victoria rejected the claim on both occasions.
[13] It was the evidence of Mr Townsend that the rejection by the State of Victoria to the specific provision did not mean that it abandoned its view that the existing clause provided for reimbursing employees for obtaining a WWCC.
[14] Against the background of that evidence, the CPSU submit that the Tribunal should not take a narrow view of the phrase “in the course of authorised duties” but instead take a wide view 8. To adopt the approach urged by the employer, it was submitted, would be to take a narrow and pedantic view.
[15] This submission is in response to the view of DHS that this expense is not incurred in the course of authorised duties 9. Indeed it is argued that a Child Protection worker cannot carry out her/his duties unless they posses such a check10.
[16] It is argued by DHS that it is an inherent requirement of the job where an obligation rests on both the employer and employee 11. Like many professions, it is not possible to engage in this work without the prerequisite qualifications. The CPSU argue that given it is a tax-deductable expense, it is attracts the operation of clause 31.1.3. This, it is argued, creates the total picture of the expense and why the clause operates to provide reimbursement.
[17] DHS argue:
- the clause has remained unaltered since 2004 well before the coming into force of the Working with Children Act 2005 (Vic);
- the CPSU made specific claims in 2009 and 2011 in relation to expenses incurred to obtain WWCC;
- these claims were rejected on both occasions;
- the WWCC is a precondition to engage in work involving children;
- this is not an expense incurred in the course of an employee authorised duties; and
- the initial payment of the WWCC was done as a gesture of goodwill to existing employees only 12.
CONCLUSION
[18] Whilst the CPSU invite me to adopt a broad approach to construction, it would be to strain the language of the clause for me to conclude that a WWCC could be characterised as an out-of-pocket expense actually and necessarily incurred in the course of his or her authorised duties.
[19] The clear industrial context in which this clause operates would not, in my view, apply in circumstances where such a qualification is a prerequisite to being employed. In its context and setting I am not persuaded that the clause would apply to reimbursing employees the cost of their WWCC.
[20] I am fortified in this conclusion by the history of negotiations between the parties. It cannot be said that there was a mutual intention to have this clause apply to the WWCC when on two separate occasions it was rejected by the employer.
[21] I find that Clause 31 does not comprehend employees being reimbursed the cost of a fee paid to obtain a WWCC.
DEPUTY PRESIDENT
Appearances:
K Dobson for the CPSU, the Community and Public Sector Union.
V Gostencnik, Solicitor, for the Department of Human Services.
Hearing details:
2012.
Melbourne:
May 24.
1 Exhibit CPSU 1, PN 5.
2 Exhibit G3, PN 4.
3 Ibid, PN 15 - 17.
4 Ibid, PN 24.
5 University of Western Sydney v Prof Richard Fletcher (2009) 183 IR 256.
6 Ibid; Shop, Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67.
7 Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10, Kucks v CSR Limited (1996) 66 IR 182.
8 Transcript of Proceedings, PN 171 - 179.
9 Ibid, PN 210.
10 Ibid, PN 214.
11 Ibid, PN 213.
12 Ibid, PN 221 - 223, Exhibit G3, PN 61 - 73.
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