CPSU, the Community and Public Sector Union v Commonwealth of Australia (Australian Customs Service)
[2010] FWA 4030
•7 JUNE 2010
[2010] FWA 4030 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
CPSU, the Community and Public Sector Union
v
Commonwealth of Australia (Australian Customs Service)
(C2009/10664)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 7 JUNE 2010 |
Dispute in relation to Clause 12.4 of the Customs Collective Agreement 2007-2010.
[1] A dispute which involved the introduction of the Customs’ National Staff Car Parking Policy at Customs House, Sydney International Airport (CHSIA) was the subject of a recent decision 1 by Vice President Lawler. The CPSU, the Community and Public Sector Union (CPSU) was unsuccessful in that application for reasons which I do not have to canvas in this decision. In the final paragraph of that decision, Vice President Lawler said:
“[27] Of course, some CHSIA staff will be entitled to the provision of free parking pursuant to clause 12.4 of the 2007 Agreement. While, under that clause, it is for Customs to determine whether reasons of personal safety justify the provision of available secure car parking to employees who work outside the normal hours of duty, it is tolerably clear that Customs must act reasonably in making such determinations.”
(my emphasis)
[2] Vice President Lawler’s obiter observation has formed the basis of the present notification concerning the application of clause 12.4 of the Australian Customs Service Collective Agreement 2007 – 2010 (2007 Agreement). The 2007 Agreement is a national Collective Agreement. There has been no previous dispute in relation to the application of Clause 12.4.
[3] I heard this application on 10 and 11 March 2010. I attended an inspection at CHSIA on 10 March 2010. Mr Kristin Barlow, Legal Officer, appeared for the CPSU and Mr Robert Cook of Counsel, instructed by Mr Bede Gahan of Minter Ellison, solicitors, appeared for the Australian Customs Service (Customs).
[4] Although Customs’ position is that, as no employee has yet made an application to it to exercise its discretion, there can be no current dispute before FWA, the jurisdiction of Fair Work Australia (FWA) to resolve the matters in dispute between the parties concerning the application of this clause is not disputed.
[5] Clause 12.4 is set out below:
“12. 4 Car Parking
Eligibility
12.4.1 For reasons of personal safety as determined by Customs, employees who work outside the normal hours of duty should be provided with available secure car parking.”
(my emphasis)
[6] The hours of work of Customs’ employees are governed by clause 9 of the 2007 Agreement. The flextime bandwidth over and above the employees’ daily ordinary hours is between the hours of 7.00am and 6.30pm, Monday to Friday. 2
[7] On 30 June 2004, Customs relocated from various locations to CHSIA. In the course of settling the terms of the lease, negotiations took place between Customs and the Sydney Airport Corporation Ltd (SACL). SACL offered Customs a number of car parking spaces at no cost for a period of three years. In September 2008, a new national parking policy was implemented whereby Customs’ employees were required to pay for parking at Sydney International Airport. This has led to a number of employees choosing to park in the surrounding council areas in locations where there is no fee for parking. It is these areas which the CPSU allege are dangerous. I conducted a view of the path between CHSIA and the Tempe sporting fields from the car park, along the expressway and across the bridge over the canal.
[8] The CPSU submits that Clause 12.4 applies to all shift workers as well as to other employees who perform overtime beyond the flextime bandwidth. It submits that all of the employees in these categories of employees should all be provided with available secure parking. Customs has failed to exercise its discretion and consider relevant safety factors and consequently it has failed to provide appropriate parking to all these employees. It is therefore in breach of Clause 12.4.
[9] The respondent submits that Clause 12.4 does not apply to employees, including shift workers, who are working their own usual hours of duty. It submits that the reference to the normal hours of duty in Clause 12.4 is a reference to the normal hours of duty of each employee, not to the normal hours of duty of Customs’ employees at large within the flextime bandwidth. Where particular employees have safety concerns they should advise their manager and resolve their concerns with Customs. In addition, as no employee has yet approached Customs with safety concerns, no entitlement arising from Clause 12.4 has been enlivened. In dealing with this notification, FWA should therefore confine itself to a consideration of the proper application of Clause 12.4. FWA has no jurisdiction to deal with any particular failure by Customs to exercise its discretion under Clause 12.4 because there has been no application for the exercise of its discretion.
[10] There was evidence led by both parties concerning the negotiations which resulted in the 2007 Agreement, the intentions of the parties regarding the operation of Clause 12.4 and the operation of past clauses. Prior to the settlement of the terms of the 2007 Agreement the Department of Employment and Workplace Relations (DEWR) had recommended that, due to a suggested ambiguity which I must say escapes me, the car parking provision in Clause 5.25.1 of the Australian Customs and Border Protection Service Collective Agreement 2004 – 2007 (the 2004 Agreement) be changed. The original clause had read:
“5.25 Car Parking
Eligibility
5.25.1 For reasons of personal safety, employees who work outside the normal hours of duty should be provided, wherever practicable, with available secure car parking.”
The new clause, as previously indicated, is as follows:
“12. 4 Car Parking
Eligibility
12.4.1 For reasons of personal safety as determined by Customs, employees who work outside the normal hours of duty should be provided with available secure car parking.”
[11] I am not persuaded that there is anything in the terms of the document as a whole which persuades me to depart from the plain meaning of the clause read in isolation. I have considered the use of the words “ordinary”, “normal”, “work” and “duty”, amongst others, in the 2007 Agreement in the various clauses to which Mr Cook directed my attention. I have considered his arguments in relation to their usage. I have also considered the alternative arguments of Mr Barlow. Both positions are arguable. I have concluded that, on balance, their usage in the 2007 Agreement is equivocal in relation to the issue before me. In this circumstance I decided to consider the clause in isolation.
[12] I have also decided that I do not need to go beyond the plain meaning of the words of Clause 12.4. There is no ambiguity in the words themselves. I do not intend to consider the evidence of either the CPSU or Customs concerning the negotiations which resulted in the new clause of the 2007 Agreement, the prior conduct of the parties or their conduct since the 2007 Agreement.
[13] The resolution of this notification depends on the meaning and construction of one sentence. If the parties had intended the clause to apply to each employees’ individual working hours it was available to them to have referred to “their” hours of duty instead of “the” hours of duty. I have concluded that “the normal hours of duty” referred to in Clause 12.4 are the ordinary hours of duty of Customs employees who are not shift workers, including the flextime bandwidth, not the hours of duty of any particular employees. The subject of the sentence which comprises Clause 12.4 is the group of employees who “should be provided with available secure car parking”. I have concluded that these employees are not, as contended by the CPSU, all of those employees who work outside the normal hours of duty, but are the smaller group of employees who work outside the normal hours of duty and whose personal safety concerns call for the exercise of Customs’ discretion to provide available secure car parking.
[14] I have concluded that “secure” parking referred to in Clause 12.4 is a reference to parking as safe as Customs can reasonably provide from the available parking at Sydney International Airport. It is not a reference to parking within Customs’ discrete control. That type of parking was available at the previous site. It is not available at Sydney International Airport. Clause 12.4 would have no work to do in Sydney if the meaning of “secure” is the meaning contended for by Customs.
[15] I have concluded that “available” parking as referred to in Clause 12.4 is a limitation on the type of secure parking which Customs is obliged to provide in the proper exercise of its discretion. Customs can only provide parking from what is available at CHSIA. It is not intended that it should provide parking to the standard which was previously available before the move to CHSIA
[16] I have concluded that “should” as used in Clause 12.4 means just what it says. If Customs is satisfied that there is a personal safety issue, and safe parking is available to Customs, then Customs should exercise its discretion and provide it.
[17] The CPSU submitted that Customs must exercise its discretion fairly, openly and reasonably. It submitted that the discretion in Clause 12.4 requires Customs to analyse and identify reasons specific to the parking arrangements that affect the personal safety of employees working outside normal hours. 3 I have already concluded that the class of employees is not as wide as that argued for by the CPSU.
[18] Customs submits that it is not required to exercise its discretion fairly, openly and reasonably to an objective standard. It is only required to exercise its discretion in a manner that is not so unreasonable that no reasonable decision maker would exercise its discretion in that manner. 4
[19] The 2007 Agreement is an industrial agreement. The words used should mean what they say. Employees should be able to rely on the document to understand their terms and conditions of employment. Employees are not required to understand and consider the niceties of the law surrounding the various possible tests governing an exercise of a discretion. The sentence says “should”. Therefore, Customs should exercise its discretion, if it is capable of doing so, in a reasonable and fair manner, if and when there is an application. The ordinary standard in this case is an exercise of discretion in a fair and reasonable manner. Customs is not required to engage in a public process unreasonably open to the scrutiny of the CPSU and its members, nor is the test as narrow as that argued for by Customs.
[20] If a relevant employee has a personal safety concern, an application to Customs can be made and then considered by Customs. When and if Customs exercises its discretion that outcome will be subject to the usual processes.
[21] This clause has not been previously considered. If the application of this clause as outlined in this decision does not meet the expectations of the parties arising from their negotiations that is a matter that can be addressed at the expiry of the 2007 Agreement.
SENIOR DEPUTY PRESIDENT
1 PR987355
2 Clause 9.2.1 of the 2007 Agreement
3 CPSU’s submissions para 17
4 Customs’ submissions para 12.7
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