Bronwyn Carter v Commonwealth of Australia Represented by the Australian Federal Police
[2023] FWC 576
•28 APRIL 2023
| [2023] FWC 576 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Bronwyn Carter
v
Commonwealth of Australia Represented by the Australian Federal Police
(C2023/234)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 28 APRIL 2023 |
Dispute arising under an enterprise agreement - jurisdictional objection – scope of disputes procedure agreement – jurisdictional objection upheld in part
The dispute and outcome
This decision concerns an application made by Ms Bronwyn Carter (the Applicant) under s 739 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute in accordance with the dispute settlement procedure in Australian Federal Police Enterprise Agreement 2017-2020 (AFP EA).[1] The Commonwealth of Australia Represented by the Australian Federal Police (the Respondent) has objected to the application on jurisdictional grounds.
To appreciate the jurisdictional objection of the Respondent, it is first necessary to say something further about the dispute raised by the Applicant and the difficulties ascertaining its character.
The Applicant filed her application and thereafter sought to file an amended application. The amended application was permitted, and the Applicant characterised the dispute in the following terms:
a) first, the Applicant requested that the Commission review the Respondent’s decision to place her in a pool position on the Support Work Pattern (SWP) (see clause 25 of the AFP EA) and in doing so consider the evidence she had provided to support her placement in an Operational Police position under the Operation Work Pattern (OWP) under clause 23 of the AFP EA (Issue One); and
b) second, the Applicant requested a review of the Respondent’s decision not to approve the ‘full suite’ of entitlements for her transfer from Canberra to Perth contrary to the AFP EA and the Respondent’s Domestic Relocation Policy. The Respondent’s decision pertains to it not approving the associated costs of the Applicant’s relocation from Canberra to Perth (Issue Two).
In that same amended application, the Applicant stated that there are three areas of dispute namely:
a) the transfer from SWP (see clause 25 of the AFP EA) to an OWP position (see clause 23 of the AFP EA);
b) the application of the Relocation Policy: clause 66 of the AFP EA and s 10 of the AFP Domestic Relocation Policy; and
c) the application of the AFP COVID-19 Determination: ss 40H(1) and (3) of the Australian Federal Police Act 1979 (Cth) (AFP Act) and clauses 23 and 25 of the AFP EA.[2]
However, in her Outline of Submissions, the Applicant has identified that there are two areas of dispute between her and the Respondent. They are:
a) the Respondent’s failure to consult the Applicant regarding assigning her to the position promised (Issue One);
b) refusal by the Respondent to approve the full suite or partial entitlements for the Applicant’s transfer from Canberra to Perth on the cessation of her deployment to Vanuatu (Issue Two).
On the face of it, a difference can be perceived between Issue One in the Applicant’s application and Issue One as characterised in the Applicant’s Outline of Submissions.
In its Outline of Submissions in Reply, the Respondent has identified that the Applicant’s submissions raise a new allegation. That new allegation, said the Respondent, is its failure to consult with the Applicant in accordance with clauses 17.9 and 70 of the AFP EA. The Respondent submits that it is not open to the Applicant, at this stage of the proceedings, to raise a new allegation that is not a ground in the application.
The Respondent submits that it understands that the dispute now centres on the assignment of the Applicant to a role assigned to a Support Work Pattern (Issue One); and in respect to Issue Two, the refusal to provide the ‘full suite of entitlements for [her] transfer from Canberra to Perth’. The Respondent contends that it is clear from the matters alleged in the application that the Applicant seeks the review of three decisions of the Respondent, none of which constitutes a dispute under the AFP EA and as such the Commission does not have jurisdiction.
It is noted, however, that evidently it is two, not three, issues that the Applicant now asks the Commission to deal with. It is relevant to note that the Applicant has appropriately conceded that one of the issues previously articulated, namely the conferral of benefits by the Respondent’s COVID-19 Determination 1 of 2020, does not fall within the Commission’s jurisdiction.
For the reasons that follow, I have determined that the Respondent’s jurisdictional objection concerning Issue One is upheld. However, Issue Two falls within the jurisdiction of the Commission to deal with and will therefore be programmed accordingly.
Background
The broader context of the application is drawn from the Statement of Agreed Facts and supplemented where necessary by the evidence of the parties.
On 10 March 1997, the Applicant commenced employment with the Respondent.[3]
On 24 May 2018, the AFP EA commenced operation.[4]
On 7 January 2019, the Applicant commenced a two-year deployment to Espiritu Santo, Vanuatu as a Policing Advisor, Northern Command to the Vanuatu Police Force.[5]
From 7 January 2019 until 16 May 2020, the terms and conditions of the Applicant's employment were set by the Australian Federal Police (Overseas Conditions of Service) Determination (No 1) 2013.[6]
On 7 April 2020, during the COVID-19 pandemic, the Applicant's role in Vanuatu was designated as 'essential'. This meant that the Applicant would not be automatically repatriated to Australia as part of the whole of Australian government response to COVID-19, led by the Department of Foreign Affairs and Trade.[7]
On 16 May 2020, the Applicant returned to Australia on a Department of Defence flight to obtain a medical test. This test was no longer available in Vanuatu.[8]
The Applicant was ready to return to Vanuatu on 19 May 2020. She was not able to do so until 21 September 2020.[9]
The Applicant states that prior to the conclusion of her deployment in Vanuatu she was advised by International Command (IC), Commander Pacific (CP) Sharon McTavish, that she was being transferred from Vanuatu to a policing position on the OWP (see clause 23 AFP EA), in the Respondent’s Western Region (WR) office in Perth.[10]
Regarding written confirmation of the transfer, the Applicant relied upon the following excerpts of correspondence she had received from CP McTavish:
a) by email dated 7 September 2020, ‘I am advised by Commander John Tanti (Western Region) that there is an operational position available for you in Perth and he is happy to have you. I hope that is good news!’;[11]
b) by email dated 7 September 2020, ‘I will have the staffing committee and deployment returns team progress your transfer to Perth so that you have certainty for when your mission is finished’;[12] and
c) by email dated 9 September 2020:
If we cannot get you back in to [sic] Vanuatu in the next couple of weeks we will progress your transfer to Perth and will hold the Santo Position in abeyance until we are able to make new arrangements.
This process is being applied universally across the offshore positions, and the circumstances of each individual are being balanced with the duty of care of the AFP to ensure people have some level of certainty and can make decisions about themselves and their families in uncertain times.
Will get back to you as soon as I have some direction your question re transfer conditions.[13]
The Applicant states that she was due to commence work in Australia on 28 November 2020 and had two months to make decisions about selling her house in Canberra, packing her belongings, and securing accommodation in Perth.[14]
The Applicant said that as soon as the position in Perth was confirmed in early September 2020, she entered into a contract to sell her house in Canberra with a settlement date of early November, which was extended to 30 November 2020.[15] The Applicant said that she also organised the sale of her mother’s home in Canberra, which went on the market in December 2020 and settled in February 2021.[16]
The Applicant explained that she had made major personal and financial decisions for herself and her family, based on IC confirmation that she was relocating to Perth to an operational position in an OWP at the conclusion of her Vanuatu posting. According to the Applicant, the position salary was at Band 7.3 plus 22% composite (pursuant to clause 23 of the AFP EA).[17]
It is the Applicant’s evidence that the first she knew that her transfer to Perth had not been progressed by CP McTavish was when the removalists advised her that she did not have approval from the Respondent to have her belongings moved from Vanuatu to Perth in October 2020.[18]
The Applicant said that when she realised there was an issue with her transfer, she emailed IC Executive, inclusive of CP McTavish, Manager International Strategies (MIS) Peter Whowell and Commander Tanti WR, asking them to advise why her transfer had not occurred.[19] The Applicant states that she received no response to her email dated 9 October 2022. The Applicant sent a further email to CP McTavish and MIS Whowell on 12 October 2022, and received no response.[20] However, after sending a further email to MIS Whowell on 20 October 2020, the Applicant received a response on that same day, confirming receipt of her emails and noting that the matter was being followed up as there had been an update from ‘Western’ that she was still under active consideration for a role in Perth.[21]
The Applicant outlined that part of the information she received as part of the COMCARE investigation into her health breakdown was the internal IC emails discussing her transfer and the failure of CP McTavish to progress it.[22] The Applicant included in her materials an excerpt from an email written by Superintendent Adam McCormack to MIS Whowell dated 27 October 2020, which stated:
…Based on this information (email from CP McTavish on 8/09/20 to me) I think it is reasonable that Bronwyn started planning for a transfer to Perth. Additionally, I think we would be creating a potential industrial issue for Comdr. Phelan (Commander McTavish’s replacement) if we were to countermand the earlier advice from the former CP… I am concerned for the absence of a role for Bronwyn in contradiction to the advice from Cmdr. McTavish…[23]
According to the Applicant, IC negotiated a ‘hubbing’ arrangement with WR such that she would be placed in a ‘pool’, with no permanent assignment to a position, remaining attached to the IC portfolio until a permanent position in Perth could be confirmed.[24] In the interim, the Applicant says she was told to ‘hub’ in a position at Perth International Airport. This position was, according to the Applicant, under the OWP under clause 23 of the AFP EA.
On 24 October 2020, the Applicant’s doctor assessed her as unfit for work.
The Applicant stated that COMCARE determined that the actions of the Respondent caused her injuries and that she had been on medical leave since 24 November 2020. COMCARE also purportedly determined that the Applicant’s ‘Normal Weekly Earnings’ were based on the operational position confirmed by CP McTavish in her emails of September 2020, namely the OWP under clause 23 of the AFP EA.[25]
The Applicant reported that the Respondent did not dispute this under the Safety, Rehabilitation and Compensation Act 1988 (Cth), however it advised the Applicant that if she took personal leave or recreation leave under the AFP EA, she would not be paid under the OWP, as the ‘hubbing’ position she had been assigned was under clause 25 of the AFP EA – a SWP and not under clause 23.[26]
The Applicant pressed that the outcome of the Respondent’s decision to consider her on a SWP meant:
a) her income is reduced by 22%, affecting the value of her significant personal and recreational leave accruals;
b) her status as a Police Officer is not recognised and she stops accruing time served as a Police Officer; and
c) she was not assigned to a team, meaning she had no supervisor, colleagues, support network or professional direction.[27]
The Applicant asserts that if it were not for her injury, she would have commenced in an operational position under clause 23 of the AFP EA and as such asks that the Commission review the decision of the Respondent to place her in the pool position under the SWP (clause 25 of the AFP EA).[28]
The Applicant said that when CP McTavish confirmed she had an OWP position in the Perth office, there were five vacancies at her level and all Police Officer positions in the WR work under the OWP under clause 23.[29]
Having been informed that the transfer to Perth had not been progressed by IC, the Applicant says she was subsequently advised that her relocation costs from Canberra to Perth would be at her own expense, despite an email from IC Superintendent Adam McCormick advising MIS Whowell that the Applicant was entitled to relocation allowances in accordance with s 10 of the Domestic Relocation Policy.[30]
Provided in the Applicant’s materials was the aforementioned email from IC Superintendent McCormick to MIS Whowell. Passages concerning the relocation benefits are extracted below:
Sir,
With reference the comments from Cmdr. Tanti (below) and Bronwyn’s request to have her chattels are shipped to Fremantle WA (Attached) I am concerned we will create a welfare and/or industrial issue if we return Bronwyn to Canberra. While I fully acknowledge the policy states Bronwyn should return to Canberra however I see we have three issues…
Issue 1)
On 8 September 202, Cmdr. McTavish wrote to Bronwyn of a position in Perth on her return to Australia. According to Bronwyn, based on this advice she since sold her house in Canberra. (The following is a cut and paste from the attached for ease).…
Based on this information I think it is reasonable that Bronwyn started planning for a transfer to Perth. Additionally, I think we would be creating a potential industrial issue for Cmdr. Phelan if we were to countermand the earlier advice from the former CP.I therefore recommend we agree to Bronwyn’s transfer, outside of policy, to WA.
Issue 2)…
10. International Transfers
Where an employee is returning from an international transfer, and is relocated to a domestic location which is different to that from their domestic location prior to the international transfer the AFP will transfer that employee’s household from the old domestic location to the new domestic transfer location in accordance with this policy. These transfers will attract the full suite of permanent transfer entitlements.
I therefore think it is important that any correspondence to Bronwyn makes it clear this is a self-initiate transfer at her own expense.[31]
The Applicant said that the matter was raised again with Dr Chris Black, National Manager People and Culture Command on 9 May 2022 and denied.[32] In the letter to Dr Black, the Acting Manager Legal and Industrial of the Australian Federal Police Association requested that Dr Black review a number of decisions relating to the Applicant which had adversely impacted her, including the decision not to pay the Applicant a relocation allowance as per the Domestic Relocations Policy – Permanent Transfer, for members returning from overseas to a different location.[33]
The legislative framework and relevant clauses of the AFP EA
Before considering the merits of the dispute, it is appropriate to set out the relevant provisions of the Act and the required approach of the Commission.
Section 172 of the Act authorises the making of enterprise agreements between national system employees and their employer(s).
The general requirements for approval of an enterprise agreement in s 186 of the Act include, at s 186(6), that the agreement contain a procedure requiring or allowing the Commission, or another independent person, to settle disputes about any matters arising under the agreement and in relation to the National Employment Standards (NES). Those who will be covered by an enterprise agreement may of course agree to a term for the settlement of disputes of broader compass, provided it relates to the permitted matters in s 172 of the Act.
The Commission has a function set out in s 576(2)(a) of the Act to deal with disputes as referred to in s 595. Section 595 of the Act provides a power to the Commission to deal with a dispute if ‘expressly authorised to do so under or in accordance with another provision’ of the Act. In such a circumstance, s 595 provides that:
(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:
(a) by mediation or conciliation;
(b) by making a recommendation or expressing an opinion.
(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
Section 595 of the Act authorises the Commission to exercise any powers it has under Subdivision B of Division 3 of Part 5–1 of the Act in dealing with a dispute.
Subdivision B of Division 2 of Part 6–2 of the Act is ‘another provision of the Act’ which expressly authorises the Commission to deal with disputes.
Section 739 of the Act concerns disputes dealt with by the Commission. Section 739 applies if a term referred to in s 738 requires or allows the Commission to deal with a dispute. Section 738(b) of the Act includes a term in an enterprise agreement that provides a procedure for dealing with disputes, including a term referred to in s 186(6).
In dealing with a dispute, the Commission must not exercise any powers limited by the term (which requires or allows the Commission to deal with the dispute (s 739(3)). The Commission may deal with a dispute only on application by a party to the dispute (s 739(6)). If, in accordance with the term, the parties have agreed that the Commission may arbitrate the dispute, the Commission may do so (s 739(4)) but must not make a decision that is inconsistent with the Act or a Fair Work instrument that applies to the parties (s 739(5)).
Section 739 outlines that the Commission’s function (if any) in dealing with a dispute referred to it under an enterprise agreement depends on the terms of that agreement and that the parties to the agreement may structure or limit the role of the Commission (or another person).[34]
Therefore, the nature of the wording in the enterprise agreement conferring the power to the Commission is relevant in determining whether the Commission will have jurisdiction to hear the dispute in circumstances where the dispute resolution procedure has or has not been followed.
Clause 71 of the AFP EA is lengthy. Therefore, the clause is reproduced in full at Annexure A of this decision. However, for current purposes the following extract suffices:
71 Dispute Resolution
(1) For the purpose of preventing and settling disputes arising from this Agreement, the dispute resolution procedures specified below will be followed.
(2) Wherever possible, disputes will be resolved between the relevant Supervisor and the Employee.
(3) For the purpose of this section, a party to a dispute means the AFP or an individual Employee or a group of Employees bound by this Agreement. A party to a dispute may appoint another person, organisation or association to accompany or represent them in relation to the dispute.
(4) Nothing contained in this section will prevent the AFP or Employees (or, where they choose, their representative/s) from entering into discussions at any level in the stepped process below if it seems likely to assist in the resolution of a dispute. Where the AFP or an Employee (or where they choose, their representatives) initiates such a discussion, they must advise the other parties involved in the dispute.
(5) If a dispute relates to:
(a) a matter arising under the Agreement; or
(b) the National Employment Standards;
this term sets out procedures to settle the dispute.
(6) An Employee who is party to the dispute may appoint a representative for the purposes of the procedures in this term.
As identified, the Applicant initially asked the Commission to review the Respondent’s decision to place her in a pool position on the SWP under clause 25 of the AFP EA and in doing so consider the evidence she had provided to the Respondent to support her place in an OWP under clause 23 of the AFP EA.
Clause 17(1) of the AFP EA sets out that all roles within the Respondent organisation (with the exception of Technical Specialist, critical event and FTM Roles) are performed within three working patterns. The working patterns are:
(a) Operations;
(b) Rostered Operations; and
(c) Support.
The three ‘AFP working patterns’ are detailed in Part V of the AFP EA, which will be traversed shortly. However, clause 17 of the AFP EA speaks to the identification and variation of the work patterns:
Establishing Working Patterns
(3) Working patterns will be linked to organisational objectives and reflect the Operational Requirements of the team, position or role.
(4) The AFP teams, positions or roles identified as an Operations working pattern or a Rostered Operations working pattern are set out in Determination No.5 of 2017.
(5) All positions or roles that are clerical and administrative (including but not limited to project officers, policy officers and administrative assistants) within teams included in Determination No.5 of 2017, will be assigned to a Support working pattern.
(6) The Commissioner may vary the working patter assigned to a team, position or role at any time.
(7) In determining a variation to a working pattern of a team, position or role, the Commissioner may have regard to, but is not limited by the following:
(a) the working pattern requested by the business area;
(b) the requirements of the role, position or team to meet operational outcomes;
(c) any request to be assigned to a particular working pattern must be supported by a business case addressing:
(i) any operational gap, underpinned by quantitative data collected over the previous six month period;
(ii) evidence of the financial viability of the requested working pattern; and
(iii) the operational risk of approving or not approving the request.
(8) Where the Commissioner varies the working pattern of a team, position or role they will do so in writing.
(9) Where the Commissioner determines to assign a different working pattern to a team, position or role, the affected Employee will be given a minimum of 28 calendar days prior notice in writing. The AFP will consult with Employees, and where they choose, their representatives, during this time in accordance with the consultation provisions of this agreement.
(10) The period of notice in sub-section (9) does not apply in the case of an Employee being assigned to another team, position or role that is already assigned a different working pattern.
(11) The Support Working Pattern is assigned to all new teams, roles and positions in the AFP, until such time as the Commissioner has determined that a different working pattern is required.
Clauses 23 and 25 are extensive and are attached in full at Annexure B. In part, they read as follows:
23 Operations Working Pattern
(1) An Employee working in a role assigned to the Operations working pattern is required to demonstrate flexibility and to work the hours and patterns of attendance as directed by their Supervisor on a 24 hour, seven days a week basis (including Designation Public Holidays).
Standard Operations Working Pattern
(2) An Employee will work 40 hours per week averaged over a Three Month Averaging Period.
High Volume Operations Composite Allowance
(3) A team, position or role assigned to the Operations working pattern may be identified for assignment to the High Volume Operations Composite Allowance. Employees subject to this allowance are required to work up to 50 hours per week averaged over a Three Month Averaging Period.
…
25 Support Working Pattern
(1) Employees assigned to the Support Working Pattern will work 40 hours of Ordinary Time per week averaged over a Three Month Averaging Period with an Employee’s normal pattern of attendance being eight continuous hours per Working Day.
(2) Where an agreement exists between the Supervisor and the Employee, the Employee may be able to work these hours flexibly within the Bandwidth. Where there is no agreement, an Employee’s normal pattern of attendance, will be Core Hours.
Clause 70 of the AFP EA sets out the Respondent’s obligation to consult with employees. Clause 70 is replicated in full at Annexure C. However, for current purposes the following subclauses are extracted:
(3) While the use of a range of consultative arrangements is desirable, the approach taken in each instance should be reasonable and appropriate to the issues and circumstances. Where the decision has been made to introduce a major change (as per the model term) or a change to the regular roster or ordinary hours of work, the consultative arrangements must comply with the requirement of the model term.
Model Term
(4) This term applies if the AFP:
(a) has made a definite decision to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the employees; or
(b) proposes to introduce a change to the regular roster or ordinary hours of work of employees.
At clause 66 of the AFP EA, the Respondent outlines when it will meet reasonable relocations costs of an ‘Employee’. It states:
(1) The AFP will meet reasonable costs arising from the relocation of an Employee and their household as the result of an advertised selection process based on Merit Principles for advancement and any redeployment as a result of Workforce Adjustment under sub-section 56(2)(c).
(2) Where there is mutual agreement between the AFP and the Employee, the Employee may be relocated on the basis that they cover some or all relocation costs.
(3) Relocation expenses will not be met by the AFP for any relocation that has occurred at the Employee’s request or for mutual agreements between Employees to swap locations on compassionate or any other grounds.
Clause 56, particularly clause 56(2)(c), as referred to in clause 66, provides:
(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.
Support Work Pattern
4.1 Respondent’s submissions
Because the Respondent objected to the Applicant’s amended application on jurisdictional grounds, it was directed to first file its Outline of Submissions. Understandably, it did so based on the Applicant’s amended application therefore identifying Issue One as the SWP Assignment, Issue Two as the Relocation Costs and Issue Three as the eligibility under the COVID-19 Determination. As noted, the Applicant no longer presses her argument regarding the COVID-19 Determination, however, the other two issues identified in her amended application are addressed by the Respondent as follows.
The Respondent observed that the Applicant had asked the Commission to:
…review the decision by the AFP to place me in a pool position on Support Work Pattern section 25, and consider the evidence I have provided to support placement in an Operational Police position under the OWP as per section 23 of the EA.[35]
The Respondent submitted that on 28 November 2020, it assigned the Applicant to the IC – Reassignment Pool, which is a role designated to a SWP.[36] It says that this assignment was consistent with an assignment of duties for the purposes of section 40H(1) of the AFP Act. Section 40H(1) provides:
The 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 Respondent observed that clause 17 of the AFP EA provides for three working patterns and that the Operations and Rostered Operations working patterns are those in Determination No.5 of 2017. The Respondent further observed that clause 17 of the AFP EA identifies the considerations the Commissioner may have regard to, and how a working pattern may be varied.[37] In respect of clauses 23 and 25, the Respondent submitted that these clauses set out entitlements of employees assigned to SWPs and OWPs.
The Respondent contended that there is a distinction between decisions by the Commissioner to assign a working pattern to a team, role or position, which are matters arising under the AFP EA, and the assignment of an individual employee to perform duties in a team, role or position. In the Respondent’s view, the latter is not a matter arising under the AFP EA (nor the NES) as the AFP EA does not contain any power or content relevant to a decision to assign an employee to a particular team, role or position.
The Respondent submitted that the Applicant had erroneously conflated the assignment of a working pattern to a team, role or position under clause 17 of the AFP EA, with the determination of an employee’s duties under s 40H(1) of the AFP Act.
According to the Respondent, the assignment of the Applicant to the Reassignment Pool was not effected by a decision under clause 17 of the AFP EA, or any other clause. The Respondent pressed it occurred consistent with the AFP Act and the Respondent’s powers of command as a law enforcement agency. The Respondent argued that the Commission is not empowered by clause 71 of the AFP EA to arbitrate a dispute between the parties in relation to the exercise of the Commissioner’s powers under the AFP Act or generally.
The Respondent reiterated that the determination of the Applicant’s duties under s 40H(1) of the AFP Act does not in any way invoke clause 17 of the AFP EA, as the Commissioner had not decided to vary a working pattern assigned to a team, position or role affecting the Applicant.
In addressing the Applicant’s submission that when an individual is assigned duties under s 40H(1) of the AFP Act they are also assigned a role, and that the role is assigned a working pattern under clause 17 of the AFP EA, the Respondent said that the proposition was not consistent with the plain meaning of clause 17. The Respondent highlighted that the Commissioner could reassign a working pattern allocated to a single role or position, which might feasibly affect a single employee, in which case there would be an obligation to consult under clause 17.9 of the AFP EA. However, the Respondent submitted that no such decision was made in this case.
As noted in the introductory paragraphs, the Respondent acknowledged that the Applicant’s submissions raise a new allegation that the Respondent failed to consult with the Applicant in accordance with clauses 17(9) and 70 of the AFP EA. The Respondent said the new allegation in and of itself should be rejected, because:
a) clause 17(9) had not been enlivened; and
b) clause 70 has not been enlivened as the facts alleged in the application do not disclose a major change or a change to the roster or ordinary hours of work of employees within the meaning of clause 70(4).
The Respondent asserted that its construction of clause 17 did not in any way undermine the plain meaning or operation of clause 70. The Respondent pressed that it is entirely conceivable that decisions made under the AFP Act may result in a major change or change to roster or ordinary hours of work within the meaning of clause 70.4, in which case the Respondent would be obliged to consult in accordance with that term. The Respondent pressed that this had not occurred in this case.
4.2 The Applicant’s submissions
In her Outline of Submissions, the Applicant expressed that she sought from the Commission its review of two of the Respondent’s decisions which constituted a dispute under the AFP EA. Those two areas of dispute are set out at paragraph [5] of this decision.
Regarding Issue One, whilst the Applicant acknowledged ‘[t]he assignment was consistent with an assignment of duties for the purposes of subsection 40H(1) of the AFP Act’, she disputed the Respondent’s submission drawing a distinction between the Commissioner’s decision to assign a working pattern to a team, role or position, with the assignment of an individual employee to perform duties in a team, role or position.
The Applicant submitted that in determining the duties of an employee, the Commissioner is assigning an individual to a role. In assigning the individual to a role, the role is assigned to a working pattern. Such assignment is covered under clause 17 of the AFP EA, which states at clause 17(6):
The Commissioner may vary the working pattern assigned a team, position or role at any time.
Clause 17(8) states:
Where the Commissioner varies the working pattern of a team, position or role they will do so in writing.
Further, and importantly, said the Applicant, clause 17(9) of the AFP EA states:
Where the Commissioner determines to assign a different working pattern to a team, position or role, the affected Employee will be given a minimum of 28 calendar days prior notice in writing. The AFP will consult with Employees, and where they choose, their representatives, during this time in accordance with the consultation provisions of this agreement.
The Applicant states that after the conclusion of her overseas deployment and once overseas leave accruals were exhausted, the AFP EA applied to her employment from 28 November 2020.
The working pattern of the Applicant’s role was determined to be a SWP contrary to the advice that she would be placed in an OWP on her return from Vanuatu. The Applicant said she was not consulted on this change as per the requirements of clause 70 of the AFP EA. Further, she did not have an opportunity to nominate representatives.
Turning to the language of clause 17 of the AFP EA, the Applicant states it contemplates the impact on individuals, not just a group of employees, where it comes to the assignment of a different work pattern. The Applicant noted that clause 17(9) speaks of ‘the affected Employee’ and clause 17(10) speaks of ‘in the case of the Employee’.
According to the Applicant, the Respondent’s argument required the Commission to omit words from clause 70 of the AFP EA. The Applicant referred to clause 70(12)(d), which requires consultation if a major change results in the alteration of hours of work. The Applicant submitted that likewise clause 70(12)(f) requires consultation if a major change results in the need to relocate employees to another workplace.
The Applicant pressed that her roster change occurred due to the change in work pattern to the SWP and therefore under clause 70(16) of the AFP EA, the Respondent was required to discuss the introduction of the change with her and invite her to provide her views about the impact of the change.
The Applicant therefore submits that should the Respondent’s argument be accepted, then the consultation required under clauses 70(12)(d) and/or 70(12)(f) would be irrelevant and in effect would be removing words from the AFP EA. The Applicant submitted that the Respondent could simply state that the major change was the result of an assignment of duties under section 40H(1) of the AFP Act. The Applicant stated that she does not agree with this assertion and submits that an assignment of an employee to perform duties in a team, role, or position must awaken the consultation requirements under clause 70 of the AFP EA and therefore the dispute resolution process in clause 71 of the AFP EA is engaged.
4.3 Consideration
At the beginning of this decision, I identified that since the Applicant lodged her amended application the characterisation of Issue One has metamorphosed from requesting a review of the decision to place her in a pool position on the SWP and consider the evidence she had provided to support placement in an OWP, to dealing with the Respondent’s failure to consult the Applicant regarding assigning her to the position promised.
Effectively, the Respondent identified that late in the proceedings the Applicant had sought to change the scope of the current dispute regarding the Applicant being place in IC – Reassignment Pool, which is a role designated to a SWP.
In response to this contention, the Applicant argued that she did not agree that she had raised a new allegation that the Respondent had failed to consult with her when there had been a decision made to change her role from the OWP to a role on a SWP. Referring to clause 17(9) of the AFP EA, the Applicant argued to the effect that consultation was an integral part of the change in the Applicant’s working pattern.
In SSX Services Pty Ltd v Australian Workers’ Union (SSX),[38] the Full Bench considered the necessity to characterise a dispute so that the jurisdiction of the Commission to deal with such a dispute is properly invoked.
In that case, the dispute had arisen under s 526 of the Act concerning the operation of s 524, which permits the stand down of employees in specific circumstances. The legislative scheme under which the current application is brought is not so removed from that under Part 3-5 to render the decision of the Full Bench in SSX immaterial. Section 739 of the Act empowers the Commission to deal with a dispute and, in doing so, the characterisation of the dispute is a seemingly necessary step to take in dealing with the dispute. In SSX, the Full Bench observed that the characterisation of disputes arises in various contexts under the Act. It stated:
[17] We have set out the relevant legislative provisions above because of their importance to considering the grounds of appeal. Importantly, the right to stand down employees under s.524 arises from the effect of the section itself. The right is not dependent on approval of the Commission. However, to the extent that a dispute arises in relation to the exercise of that right, the Commission is empowered by s.526 to deal with that dispute by arbitration. The Commission is required to take into account fairness between the parties concerned and thereby incorporate an overall discretionary factor into the task of determining a dispute over whether the right to stand down is correctly invoked in the circumstances. The parties are bound by s.527 to comply with an order of the Commission dealing with a dispute. These provisions make it important to correctly identify the subject matter of a dispute the subject of arbitration for the purposes of any such order.
[18] The characterisation of disputes arises in various contexts under the Act, most particularly in relation to disputes arising from the application of awards and agreements. It is necessary to have regard to the nature of a dispute alleged in an originating application and the factual circumstances as they evolve for the purposes of conciliation and arbitration of the dispute. A Full Bench of the Commission’s predecessor expressed the importance of characterising a dispute in this way, albeit in a different statutory context, namely the resolution of disputes arising under certified agreements made under the Workplace Relations Act 1996 (Cth):
“[45] A dispute referred to the Commission must be properly characterised before powers conferred by a dispute settlement provision in a certified agreement are exercised. This is necessary in order to determine whether the dispute is ‘over the application of the agreement’ within the meaning of s.170LW of the WR Act. …
…
[47] In characterising the nature of the dispute in this matter the Commission is not confined to the dispute notification document. The entire factual background is relevant, including matters such as the submissions advanced. In this context we note that in TWU v Mayne Nickless Ltd the Full Court of the Federal Court held that in determining whether an application calls on the Commission to exercise judicial, as opposed to arbitral, power ‘a court should review the entire factual background to properly characterise the claim and the power sought to be invoked.’
(footnotes omitted)”
[19] In Maritime Union of Australia v Australian Plant Services Pty Ltd, Lacy SDP said:
“Parliament has authorised the Commission to exercise powers under the agreement to settle disputes over the application of the agreement and, accordingly, its powers are limited to disputes of that kind. Therefore it is necessary for the Commission, in each case where it is asked to deal with the matter arising under the disputes settling procedure in an agreement, to ascertain the character of the dispute before it in order to determine whether the matter is a dispute over the application of the agreement, and, importantly, the character of the dispute is distinguishable from the order that may be made in settlement of the dispute.”
[20] We consider that the arbitration of the dispute under s.526 (1) and (2) of the Act requires similar characterisation by the Commission for the purposes of any arbitration of such a dispute.
[21] We have set out the full terms of the originating application above. A fair reading of those terms is that the AWU sought to challenge the fundamental basis relied on by the employer for the stand downs - that there was no useful work for the employees at the relevant time. The AWU contended that “the relevant affected employees could have been usefully employed in their normal work as contemplated by s.524(1) of the Act”. The order sought was that SSX not stand down employees “in circumstances where they can be usefully employed”.
[22] As paragraph [51] of the Commissioner’s decision makes clear, the parties did not address the further question of whether the stand down was “because of one of the circumstances set out in paragraphs 524(1) (a), (b) or (c).” The parties accepted in the proceedings before us that this observation from the Commissioner was correct. However the fact that they did not address the issue establishes that this matter was not in dispute. The Commission was not empowered to deal with this question because it did not fall within the dispute that arose in relation to s.524. In proceeding to deal with this matter the Commissioner considered an issue outside the scope of the dispute and exceeded the jurisdiction conferred by s.526.[39]
It is not unusual for the scope of a dispute to change while it is before the Commission. This can often occur during conciliation as matters are partly resolved or new issues pertinent to that notified, emerge, and become clearer.[40] However, there are some pertinent points to make in this case.
The originating application, to which amendments were permitted under s 586 of the Act, captures the dispute as one concerning a disagreement on the decision made by the Commissioner to assign the Applicant to IC – Reassignment Pool with WR on a SWP. To that extent, the Applicant had requested the Commission review the Respondent’s decision to place her in the Reassignment Pool on the SWP and consider the evidence she had provided to support her placement in an Operational Police position on the OWP. The dispute was also characterised as being about the transfer from the SWP to an OWP position. The amended application detailed that the relief sought was ‘[a]ssignment to section 23 of the Enterprise Agreement, from 01/01/21.’
In her Outline of Submissions, the Applicant identified the dispute as one centred on the Respondent’s failure to consult the Applicant regarding assigning her to the position promised.
The decision of the Full Bench in SSX emphasises the importance of correctly identifying the subject matter of a dispute the subject of arbitration for the purposes of dealing with a dispute. The case informs that it is necessary to have regard to the nature of a dispute alleged in an originating application and the factual circumstances as they evolve for the purposes of conciliation and arbitration of the dispute.
In my view, the Applicant has fundamentally changed the character of the dispute from one where the contentious issue was the Respondent’s decision to place her in the IC – Reassignment Pool on a SWP, notwithstanding the evidence she had provided to the Respondent to support placement in an Operational Police position on an OWP. The dispute as now presented by the Applicant, is one about the Respondent’s purported failure to consult under the AFP EA.
Turning first to the characterisation of the dispute about the failure to consult, the relevant clauses in the AFP EA relied upon by the Applicant are clauses 17(9) and 70. However, in respect of the Respondent’s decision to place the Applicant into the Reassignment Pool, a role designated to a SWP, the relevant clauses under the AFP EA are clauses 17, 23 and 25. Of particular relevance, insofar as the Applicant has framed the dispute in her amended application (as opposed to her Outline of Submissions), are clauses 17(3)–(8).
In the amended application, the Applicant identifies that she raised ‘all issues’ with her supervisor at the time they occurred.[41] Issue One in the amended application is identified as the transfer from a SWP under clause 25 of the AFP EAP to an OWP position under clause 23. The Applicant thereafter requests under Issue One that the Commission review the decision by the Respondent to place her in a pool position on SWP and consider the evidence provided to support a place in an Operational Police position on an OWP. The relevance of these observations pertains to the Applicant’s compliance with the dispute resolution procedure at clause 71 of the AFP EA.
In Charles Sturt University v National Tertiary Education Union (NTEU)[42], the Full Bench of the Australian Industrial Relations Commission explained that the power of the Commission as a private arbitrator under a dispute settlement procedure is subject to any limitations in the agreement conferring power on the Commission. In particular, the Full Bench noted:
[11] The emphasised words in clause 58.5 are unambiguous and…represent a condition precedent that must be satisfied before a dispute under clause 58.1, clause 58.2 or clause 58.3 can be referred to the Commission pursuant to clause 58.5. The Commission is obliged to give effect to that condition as part of the agreement of the parties.
The evidence in the NTEU decision established that the procedures in the enterprise agreement had not been followed before the matter was referred to the Commission. On this basis, the Full Bench held that it did not have jurisdiction under clause 58.5 unless that condition precedent to referral had been satisfied.
In Australian Workers’ Union v MC Labour Services Pty Ltd (MC Labour),[43] the Full Bench expressed:
[37] It may be that situations will arise where it is genuinely impossible for a party to comply with a mandatory step in a dispute resolution procedure, and that the effect of this is that the Commission or other independent person cannot attempt to settle the dispute. This might be an issue for the Commission to examine when considering whether to approve an agreement under s.185 of the FW Act. However, once an agreement has been approved, and a dispute is referred to the Commission under it, it would not be permissible for the Commission to recast or ignore certain components of the dispute settlement procedure. Section 186(6) is not a source of power to do this. An enterprise agreement comes into operation seven days after it is approved by the Commission. Once in operation, the agreement is presumed to be valid, until such time as the decision of the Commission to approve the agreement is overturned on appeal, or the agreement is otherwise found by a court to be invalid. The various terms of an enterprise agreement are also assumed to be valid, with the exception only of unlawful and certain other terms, which have no effect as a result of s.253 of the FW Act.
[38] The requirements of s.186(6) may be relevant in identifying the proper construction of a dispute resolution clause in an agreement. If the proper meaning of such a clause is disputed, the resolution of the disputed construction will begin with the ordinary meaning of the relevant words, considered in context, in accordance with the principles summarised in AMWU v Berri. The legislative framework, including s.186(6), is part of that context. There may be cases where, properly construed, the clause allows the Commission to proceed to deal with a matter, despite certain steps not being satisfied. And of course, there may be clauses which expressly allow certain steps to be bypassed, or for the Commission to have a general discretion to deal with disputes.
[39] However, the parties to an enterprise agreement are free to impose limitations on the role afforded to the body that is to settle disputes about matters arising under the agreement. Where these limitations are not observed, the Commission (or other persons) has no discretion to deal with a dispute referred to it under the agreement, unless one is conferred on it under the terms of the agreement.
Expressing a view as to the operation of provisions in an enterprise agreement is fundamental in order to discharge the Commission’s role in the dispute resolution procedure to resolve disputes between the parties to an agreement.[44] This of course extends to whether the dispute raised is of the kind referred to in the dispute resolution procedure within an agreement. In this case, the dispute raised under the dispute resolution procedure with the Respondent organisation concerned the Applicant’s disagreement with the Respondent’s decision to place her into the Reassignment Pool, a role designated to a SWP. It is not the dispute that the Applicant now presents for arbitration, a dispute over whether the Respondent consulted her about that decision. When one refers to the dispute as characterised in the Applicant’s Outline of Submissions, the scope of the purported dispute does not have bearing to the issue between the parties that had escalated through the dispute resolution procedure (see clause 71 of the AFP EA and Form F10 question 2.5).
The Commission is not confined to considering only the originating application (or dispute notification document) when characterising the nature of the dispute. The entire factual background is relevant, including the matters such as the submissions advanced. However, in this case, the Applicant’s Outline of Submissions reveals a dispute, the character of which is a recent invention and not one that Respondent was notified of prior to the matter being listed for arbitration. In such circumstances, the Respondent’s jurisdictional objection on this ground is upheld.
I have found that the dispute now before the Commission in respect of the Respondent’s failure to consult the Applicant regarding her placement in the IC – Reassignment Pool is of different character to the dispute so described in her amended application that was escalated through the dispute resolution procedure under clause 71 of the AFP EA. To conclude, the steps in the dispute resolution procedure under clause 71 of the AFP EA have not been followed and therefore the Commission is absent jurisdiction to deal with this dispute.
However, for the sake of fulsomeness, the following reasons warrant articulating regarding the Applicant’s characterisation of the dispute as articulated in her amended application and whether there existed a dispute of the relevant kind.
The principles of construction relevant to interpreting an enterprise agreement have been articulated in the judgment of the Full Federal Court in WorkPac Pt Ltd v Skene (Skene).[45] This Commission has repeated these principles at first instance and on appeal[46] in the terms traversed in the following paragraph.
Interpreting an enterprise agreement begins with a consideration of the ordinary meaning of the words, read in context, taking account of the evident purpose of the provisions or expressions being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement. The statutory framework under which the agreement is made, or in which it operates, may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in which an agreement is made and operates is also relevant. Thus, the language of an agreement is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. But context is not itself an end, and a consideration of the language contained in the text of the agreement remains the starting point and the end point to the task of construction. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach. [47]
The Full Bench in MC Labour held that the Commission’s power to deal with a dispute under an enterprise agreement ‘depends on the terms of that agreement, and that the parties to the agreement may structure or limit the role of the Commission (or other person)’.[48]
In November 2020, the Applicant was assigned to the Reassignment Pool in IC, which, as has been noted, is a role designated to a SWP.[49]
Clause 16(6) of the AFP EA sets out:
[a]n Employee’s Normal Working Hours, based on the AFP working pattern to which the Employee’s role is assigned, are averaged over a Three Month Averaging Period or a Roster Period.
Thereafter clause 17(1) sets out that all AFP roles (with exceptions not relevant to the dispute) are performed within three working patterns.[50] Details of those working patterns are provided in Part V of the AFP EA.[51]
Clause 17(4) sets out:
The AFP teams, positions or roles identified as an Operations working pattern or a Rostered Operations working pattern are set out in Determination No.5 of 2017.
It is observed that clause 17(4) refers to teams, positions, or roles that are identified as having a particular working pattern – whether that working pattern is Rostered Operations or Operations. Importantly, the ordinary meaning conveyed by the words, is that it is not the employee who is assigned to a working pattern, it is the ‘team’, ‘position’ or ‘role’. Further, clause 17(4) informs that working patterns assigned to a ‘team’, ‘position’ or ‘role’ is set out in Determination No.5 of 2017.
Determination No.5 of 2017 – Teams, roles and positions designated as Operations or Rostered Operations, is a document which sets out a list of definitions, clause 17(3) of the AFP EA and a table of the teams, roles and positions designated as Operations and Rostered Operations.[52] The table is extensive taking up some 40 plus pages. However, set out below is the third page:
Determination No.5 of 2017, does, in addition, set out certain positions within teams will be assigned to a SWP. Determination No. 5 of 2017 is signed by ‘Reece P Kershaw APM AFP Commissioner’.
Clause 17(6) sets out that the Commissioner may vary the working pattern assigned to a team, position, or role at any time. As will be again evident from clauses 16 and 17 of the AFP EA and now reinforced by the table in Determination No.5 of 2017, clause 17(6) only addresses the variation of the working pattern of a team, position or role. Such that a team is for example, Office of the Commissioner or Deputy Commissioner Operations and in respect of the Deputy Commissioner Operations, the relevant ‘sub-teams’ are Prof Investigations Team Sydney, Melbourne, Brisbane and so on. The ‘Role/Positions’ are ‘Team Leader/Team Member’, depending of course on the particular team. In this example, the working patterns are all OWP.
Clause 17(7) sets out the factors the Commissioner may have regard to in determining a variation to a ‘working pattern of a team, position or role’. Those factors are set out at clause 17(7)(a)-(c). The factors are not referrable to an individual employee, but are instead factors pertaining to the working pattern requested by the business area, and the requirements of the role, position or team to meet operational outcomes.[53] Clause 17(7)(c) further supports this construction, with the requestor obliged to provide a business case addressing matters such as an operational gap underpinned by quantitative data collected over six months, evidence of financial viability for the requested working pattern and the operational risk of approving or not approving the request.
There is an obligation under clause 17(9) of the AFP EA to consult with an affected employee where the Commissioner determines to assign a different working pattern to a team, position, or role. However, in this case there was not a determination from the Commissioner to assign a different working pattern to a team, position, or role. For example, the Commissioner did not decide to vary the work pattern of the Reassignment Pool position.
Returning to the Respondent’s contention that there is a distinction between the Commissioner’s decision to assign a working pattern to a team, role, or position and the assignment of an individual employee to perform duties in a team, role or position, when the ordinary words of clause 17 are considered within the context of the AFP EA as a whole, it is evident that the Respondent’s interpretation of clause 17 is correct. Clause 17 is unambiguous in its terms. The decision to allocate the Applicant to the Reassignment Pool is not a decision that arises under clause 17 of the AFP EA or for that matter clauses 23 or 25.
It follows that the Applicant’s dispute, whether characterised as:
a) a request for the Commission to review the Respondent’s decision to place her in the Reassignment Pool on the SWP and in doing so consider the evidence provided to support her placement in an Operational Police position under OWP; or
b) a dispute about the transfer from the SWP (see clause 25 of the AFP EA) to an OWP position (see clause 23 of the AFP EA);
is not a dispute of the relevant kind, being one relating to the AFP EA or the NES. Therefore, the Commission is absent jurisdiction to deal with such dispute. For reasons already provided, clause 17(9) of the AFP EA had not been enlivened.
The Applicant has also characterised her dispute as a failure to consult. Of course, an obligation to consult under clause 70 only arises in prescribed circumstances.
It is relevant at this juncture to observe that the Respondent submitted that clause 70 of the AFP EA had not been enlivened as the facts alleged in the application did not disclose a major change or a change to the roster or ordinary hours of work of employees within the meaning of clause 70(4) of the AFP EA. However, the Applicant in her amended application identified that her roster changed due to the change in the work pattern to a SWP. Notwithstanding the contentions of both parties regarding this characterisation of the dispute, at paragraphs [93] and [94] of this decision, I found that the Applicant’s reliance on a characterisation of the dispute as a ‘failure to consult’ was a recent invention and determined that this was not the dispute that had been referred to this Commission for the purpose of clause 71 of the AFP EA.
Relocation costs
The Applicant identified in her Outline of Submissions that Issue Two was the Respondent’s refusal to approve the full suite or partial entitlements for the Applicant’s transfer from Canberra to Perth on the cessation of her deployment to Vanuatu.
To recap, clause 66 of the AFP EA outlines the circumstances under which the Respondent will meet reasonable relocations costs of an ‘Employee’. It states:
(1) The AFP will meet reasonable costs arising from the relocation of an Employee and their household as the result of an advertised selection process based on Merit Principles for advancement and any redeployment as a result of Workforce Adjustment under sub-section 56(2)(c).
(2) Where there is mutual agreement between the AFP and the Employee, the Employee may be relocated on the basis that they cover some or all relocation costs.
(3) Relocation expenses will not be met by the AFP for any relocation that has occurred at the Employee’s request or for mutual agreements between Employees to swap locations on compassionate or any other grounds.
5.1 The Respondent’s submissions
The Respondent submitted that on 28 October 2020, it informed the Applicant that her transfer to Perth was ‘self-initiated’ and would not be covered by the Respondent’s Domestic Relocations Permanent Policy.[54]
The Respondent stated that it was not clear what dispute the Applicant alleges arises from, or under, clause 66 of the AFP EA. It noted that clause 66 is enlivened in the following circumstances:
a) when an employee and their household relocate as the result of an advertised selection process based on Merit Principles for advancement or are redeployed as a result of Workforce Adjustment under clause 56(2)(c) in which case the Respodent will meet the reasonable costs of relocation; and
b) where the employee is relocated by mutual agreement between the Respondent and the employee – in which case the Respondent may cover some or all relocation costs.
The Respondent said that in the Applicant’s case, clause 66 has not been enlivened. The Applicant has not been assigned to a position in WC, nor has the Applicant’s position been relocated to Perth. The Applicant's assignment remains to IC.[55] The Respondent asserts that this point is not in dispute: see [39] of the Form F10, which states, 'I was later advised the transfer was not progressed by International Command'.
According to the Respondent, there can be no dispute arising under clause 66 of the AFP EA capable of arbitration by the Commission. The Respondent added that if the Commission is not so persuaded, it is clear that the Applicant is not entitled to relocation costs under clause 66(2) and the application must nevertheless be dismissed. This is so because clause 66(2) does not give rise to an obligation on the Respondent to fund some or all of an employee's relocation costs where there is mutual agreement between the Respondent and employee to relocate an employee – as alleged by the Applicant. Rather, clause 66(2) permits the employee to cover some or all of their own moving costs where they are to be relocated as a result of an advertised selection process or a workforce adjustment under clause 56(2)(c) of the AFP EA.
5.2 The Applicant’s submissions
The Applicant asserts that the subclauses of clause 66 of the AFP EA stand alone and as such, for clause 66(2) to be enlivened it does not depend on clause 66(1) being first met. In support of this proposition, the Applicant referred the Commission to minutes from the ‘AFP Enterprise Bargaining Meetings in 2016-17’, which it says, confirms the Applicant’s view that the sub-clause has broader relevance than just relating to promotion and workforce adjustment.
It is the Applicant’s argument that there was mutual agreement between her and the Respondent that the Applicant would relocate from Canberra to Perth on the cessation of her overseas deployment. In this respect, the Applicant relies upon the correspondence between her and CP McTavish that advised of her transfer to WC in the OWP in addition to Superintendent McCormack’s email to MIS Peter Whowell dated 27 October 2022.
The Applicant asserts that the Respondent indicated to her on multiple occasions that there was a position for her in Perth and on that basis she had a legitimate expectation she was relocating to Perth. The Applicant states that the Respondent did not raise the issue of who would fund the relocation until 27 October 2020.[56]
Based on the correspondence between her and the Respondent, the Applicant said she assumed she would be covered by clause 10 of the Respondent’s Domestic Permanent Relocation Policy which relates to her situation. It states:
Where an employee is returning from an overseas transfer, and is relocating to a domestic location which is different to that from their domestic location prior to the international transfer, the AFP will transfer that employees’ household from the old domestic location to the new domestic transfer location in accordance with this policy. These transfers will attract the full suite of permanent transfer entitlements.
Further, in relation to the Respondent’s submission that the Applicant has not been assigned to a position in WC, the Applicant asserts clause 66 of the AFP EA makes no reference to the requirement for an employee to be assigned to a position in the receiving location. All discussion relates to movement of the person and their household.
The Applicant therefore submits that a dispute arose under clause 66 of the AFP EA and as such the Commission does have jurisdiction to hear the dispute.
5.3 Consideration
Paragraph [97] of this decision details the principles of construction relevant to enterprise agreements. Therefore, it is unnecessary to repeat them here, with the exception of observing that interpreting an enterprise agreement begins with a consideration of the ordinary meaning of the words, read in context, taking account of the evident purpose of the provisions or expressions being construed.
Turning to context, it is evident from the writing conventions adopted in clause 66 that subclauses (1), (2) and (3) are standalone clauses (regarding syntax). They do not form part of a list and there is no use of conjunctions between them that would, in the usual sense, indicate some semblance of interrelatedness. Turning to the content of each clause, the substance of each clause can, and does in fact, standalone, albeit subclause (3) provides a prohibition on relocation expenses in prescribed circumstances.
Subclause (1) addresses a relocation arising as a result of an advertised selection process or in circumstances where there is a redeployment as a result of Workforce Adjustment (as described in clause 56(2)(c) of the AFP EA).
In contrast, subclause (2) addresses a relocation where there is mutual agreement between the Respondent and the employee that the employee may be relocated on the basis that they cover some or all relocation costs. It is not apparent that subclause (2) is in anyway limited in its operation by subclause (1).
However, as observed, subclause (3) expressly prohibits the provision of relocation expense for a relocation that has occurred at the employee’s request or by mutual agreement between employees where locations have been swapped.
Based on the materials relied upon by both Applicant and Respondent, I consider that the Commission has jurisdiction to deal with the dispute regarding the relocation costs arising from the Applicant’s relocation to Perth pursuant to clause 66 of the AFP EA. Whilst appreciative that there is a factual dispute in respect of there being a mutual agreement between the parties regarding the Applicant’s relocation costs, such dispute does not detract from the standpoint that the Commission is with jurisdiction to arbitrate the dispute. In this respect, the Respondent’s jurisdictional objection cannot be sustained.
However, insofar as the Applicant relies upon clause 10 of the Respondent’s Domestic Permanent Relocation Policy on which to premise her dispute, her reliance is misplaced. It is observed that the Domestic Permanent Relocation Policy does not appear to be incorporated as a term of the AFP EA. It is therefore unclear why the Applicant draws upon the Domestic Permanent Relocation Policy to premise her dispute in an application brought under s 739 of the Act. The Commission can only deal with the Applicant’s dispute under s 739 of the Act in accordance with clause 71 of the AFP EA. That clause expressly provides that if a dispute relates to: (a) a matter arising under the Agreement; or (b) the NES, then clause 71 sets out procedures to settle the dispute. A dispute regarding the operation or application of the Domestic Permanent Relocation Policy is not a dispute relating to a matter arising under the Agreement or the NES. Hence, the Commission is absent jurisdiction to deal with a dispute on the operation or application of the Domestic Permanent Relocation Policy.
Conclusion
The Commission has no jurisdiction to arbitrate Issue One of the present dispute because Issue One is not one in relation to the AFP EA or the NES and therefore the AFP EA does not allow me to deal with it. However, Issue Two is a dispute in relation to the AFP EA and therefore the Commission has authority to deal with this part of the dispute. Directions will issue accordingly.
DEPUTY PRESIDENT
Appearances:
G Snedker of the Australian Federal Police Association for the Applicant.
K Easdale for the Respondent.
Hearing details:
2023.
Perth (by video):
16 March.
Annexure A
Annexure B
Annexure C
[1] AE428393 (AFP EA).
[2] Amended Form F10 – Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure, [2.1] (Form F10).
[3] Statement of Agreed Facts, [1].
[4] Ibid [2].
[5] Ibid [3].
[6] Ibid [4].
[7] Ibid [5].
[8] Ibid [6].
[9] Ibid [7].
[10] Form F10 (n 2) [2.1(16)].
[11] Ibid [2.1(17)(a)].
[12] Ibid [2.1(17)(b)].
[13] Ibid [2.1(17)(c)].
[14] Ibid [2.1(19)].
[15] Ibid [2.1(20)].
[16] Ibid.
[17] Ibid [2.1(22)].
[18] Ibid.
[19] Ibid [2.1(24)(a)].
[20] Ibid [2.1(24)(b)].
[21] Ibid [2.1(24)(c)–(d)].
[22] Ibid [2.1(25)].
[23] Ibid [2.1(25)], attachment J.
[24] Ibid [2.1(27)].
[25] Ibid [2.1(29)].
[26] Ibid [2.1(30)].
[27] Ibid [2.1(31)].
[28] Ibid [2.1(34)].
[29] Ibid [2.1(35)].
[30] Ibid [2.1(40)(a)].
[31] Ibid attachment J.
[32] Ibid [2.1(43)].
[33] Ibid attachment N.
[34] Australian Workers’ Union v MC Labour Services Pty Ltd [2017] FWCFB 5032, [25] (MC Labour).
[35] Form F10 (n 2) [2.1(34)].
[36] Respondent's bundle of documents, Tab 5.
[37] AFP EA (n 1) cls 17(6)-(10).
[38] (2015) 250 IR 377.
[39] Ibid 383–5 [17]–[22].
[40] Independent Education Union of Australia v The Peninsula School (2020) 299 IR 385, 392 [22].
[41] Form F10 (n 2) [2.5(1)].
[42] (2005) 145 IR 319.
[43] MC Labour (n 34).
[44] “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Unilever Australia Trading Ltd[2016] FWC 7600, [86].
[45] (2018) 264 FCR 536, 564–6 [197] and the authorities referred to therein. See also King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173, [122]–[130] and the authorities referred to therein (the analysis of the principles of construction set out therein were not disturbed on appeal: see King v Melbourne Vicentre Swimming Club Inc (2021) 308 IR 171, 183–4 [40]–[43]).
[46] Australian Workers’ Union as authorised representative of several employees covered by the Agreement v Orica Australia Pty Ltd[2022] FWCFB 90, [18] (Orica); Jetstar Airways Pty Ltd v Australian Licenced Aircraft Engineers Association [2021] FWCFB 1696 (Jetstar); Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v KDR Victoria Pty Ltd [2021] FWC 6160 (KDR Victoria).
[47] Orica (n 46) [18]; Jetstar (n 46); KDR Victoria (n 46).
[48] MC Labour (n 34) [25].
[49] Respondent's bundle of documents, Tab 5; Form F10 (n 2) [2.1(39)].
[50] AFP EA (n 1) cl 17(1).
[51] Ibid cl 17(2).
[52] Digital Hearing Book, 232–79.
[53] AFP EA (n 1) cl 17(7)(a)–(b).
[54] Respondent's Bundle of Documents, Tab 6.
[55] Form F10 (n 2) attachment L, 7.
[56] See ibid attachment J.
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