CPSU, the Community and Public Sector Union v Victoria Police
[2016] FWC 2977
•12 May 2016
[2016] FWC 2977
DECISION
| Fair Work Act 2009 | |
| s.739 - Application to deal with a dispute | |
| CPSU, the Community and Public Sector Union | |
| v | |
| Victoria Police | |
| (C2014/6812) | |
| COMMISSIONER WILSON | MELBOURNE, 12 MAY 2016 |
Application to deal with a dispute. Eligibility for payment of excess travelling time.
Introduction
[1] An application for the Fair Work Commission to deal with an alleged dispute was
made in October 2014 by the Community and Public Sector Union (the CPSU), alleging that
Victoria Police has not properly applied the terms of the Victorian Public Service Workplace
1
| Determination 2012 | (the 2012 Determination). |
[2] The matter has been the subject of extensive conciliation efforts initially before
Deputy President Smith and more recently myself. It has now been the subject of a request by
the CPSU for the Commission to determine the dispute under the provisions of s.739 of the
Fair Work Act 2009 (the Act).
[3] By any accounts Victoria Police is a large and geographically diverse workplace.
Employees can be, and are, periodically assigned to work at different worksites in order to
best undertake the duties required of them and provide the services the community requires
from Victoria Police. The matters in dispute between the parties surround what should occur
when an employee is asked to work somewhere other than their “usual” place of work.
[4] The dispute relates to administrative staff of Victoria Police and arises under the terms
of the 2012 Determination.
[5] The CPSU invites the Commission to resolve in its favour the following Question for
Determination;
“If an employee travels to a temporary workplace, is any period of additional travelling
time regarded as time worked and not subject to implied constraints of clauses related
to reimbursement of expenses for meal, travel and relocation?”
[2016] FWC 2977
[6] For the reasons set out in this decision, I find that the Commission has jurisdiction to
hear and determine the dispute under the terms of the 2012 Determination; and that the
CPSU’s Question for Determination should be answered in the affirmative.
Background to the dispute
[7] Clause 11 (Resolution of Disputes) of the 2012 Determination allows for disputes to
be brought forward to the Fair Work Commission provided it is a “dispute about a matter
arising under this determination or the National Employment Standards”. The matters that are
the subject of the CPSU’s application are within the scope of the clause. The matter is
properly before the Commission and jurisdiction exists to determine the matters in dispute.
[8] The instrument requiring construction in this case is the 2012 Determination made
pursuant to the provisions of Chapter 2, Part 2 – 5 of the Act. The nature of the 2012
Determination, and of particular relevance to this case, is that it draws upon earlier agreement
between the parties, notwithstanding that the Determination itself is a product of the
Commission’s exercise of arbitral power, strictly speaking. Much of its content has come
about through the agreement of the parties, including the terms in contention in this dispute.
[9] In the circumstances of this matter therefore it is appropriate to proceed in accordance
with the principles of interpretation as laid out within the matter of AMIEU v Golden Cockerel
2
| Pty Ltd | (Golden Cockerel). While the formation of the 2012 Determination was, of course, |
the product of the Commission’s exercise of its arbitral powers, rather than being the product
of the Commission’s approval of an enterprise agreement already made by the parties in terms
upon which they each agreed, I am satisfied that the relevant clauses stem from the parties’
own bargaining.
[10] The application to the Commission is made pursuant to s.739 of the Act which
provides jurisdiction to deal with disputes in certain circumstances set out within the section
and s.738, namely where a “term” of a modern award, an agreement or a contract or Public
Service Determination allows. Section 279 provides that the Act applies to a workplace
determination as if it were an enterprise agreement that is in operation. Arbitration of a
dispute may only be where the parties have agreed for that to occur, in accordance with the
term. The Commission’s powers to deal with a dispute under s.739 are constrained in the
ways set out in the section, and most particularly in the way set out in sub-section (5), such
that the Commission may not make a decision that is inconsistent with the Act or a fair work
instrument applicable to the parties.
[11] The 2012 Determination comprises conditions applying across all sectors of the
Victorian Public Service, together with agency specific conditions set out in particular clauses
and appendices. Relevant to determination of this matter are the provisions of clause 30
(Reimbursement of Expenses), and in particular clauses 30.8 (Agency-specific
Reimbursement Arrangements) and 30.9 (Excess Travel Time). The terms of Appendix 8
(Victoria Police), Part 1 (General), clause 1 also require consideration. The relevant
provisions of those clauses are set out below;
“30.8 Agency-specific reimbursement arrangements
30.8.1 The reimbursement of meal and travel expenses for Employees in Victoria
Police will be in accordance with clause 1 of Appendix 8.
[2016] FWC 2977
30.9 Excess Travelling Time
An Employee who is temporarily required to undertake duties at a location other than
his or her usual place or places of work will have any period of additional travelling
time regarded as time worked.”
“APPENDIX 8 – VICTORIA POLICE
PART 1- GENERAL
1. ALLOWANCES
Eligibility and amounts for reimbursement for travel, meal and relocation expenses
will be consistent with those applied to sworn Employees of Victoria Police.”
[12] Several employees have made claims to Victoria Police for reimbursement of travel
expenses they incurred as a result of a temporary reassignment of their working location. The
following examples of claims made were included within the Agreed Statement of Facts
between the parties;
Example 1 – claim dated 12 June 2014
As claimed by the CPSU
“Ms [CPSU member] provided support for Ararat Police station over the
end of 2013 start of 2014 totalling ten days.
[Her] usual place of work is Stawell to which she travels from her home
in Navarre. The trip to Ararat was an additional 54kms/day and totalled
an additional 50 minutes travel of and above the regular trip to Stawell.
Clause 30.9 of the Victorian Public Service Workplace Determination
2012 provides for additional daily travel to be regarded as time worked
when a member temporarily works at another location.
[She] travelled to Ararat on ten days over the time. CPSU seeks an
additional payment to be paid to [her] as soon as is practicable as per
the following calculations:
• 50 mins x 10 days at normal hourly rate of pay x 1.5 (overtime rate)
for ten days
• 500 mins is 8.67 hours
• 8.67 x 1.5 = 13 x normal hourly rate of pay
[Her] normal rate of pay I have been advised is $25.35
3
• 13 x $25.35 is $329.55”
Victoria Police response, 25 July 2014
[2016] FWC 2977
“I refer to your letter dated 12 June 2014 regarding a request for
payment to Ms [CPSU member] for travel incurred in providing support
at a station other than her usual place of work at Stawell. The distance
from Stawell to Ararat is 29km one way and takes approximately 26
minutes by car.
Section 1 of Appendix 8 of the Victorian Public Service Workplace
Determination 2012 (the Determination) states 'Eligibility and amounts
for reimbursement for travel, meal and relocation expenses will be
consistent with those applied to sworn Employees of Victoria Police'.
Accordingly, Section 85.2(b) of the Victoria Police Force Enterprise
Agreement 2011 stipulates excess travel occurs where 'A Country
employee is required to undertake duty outside the Metropolitan area
beyond a 50 kilometre radius or 40 minutes travel time to their usual
station or place of permanent employment (whichever is the least)'.
Based on the above information, Ms [CPSU member] does not qualify
4
for payment of excess travel.”
Example 2 – claim dated 18 February 2015
As claimed by the CPSU
“Mr [CPSU member] lodged a claim for permanent relocation as per
clause 30.10 of the Victorian Public Service Workplace Determination
2012 which has been rejected as it is the belief of Victoria Police that he
has not been redeployed following his position being abolished at Narre
Warren.
Clause 30.9 of the Determination provides for additional daily travel to
be regarded as time worked when a member temporarily works at
another location.
Duncan has relocated to the Victoria Police Academy, according to
Victoria Police it is on a temporary basis (his fixed term role is for
eighteen months). If it is to be accepted that this transfer is temporary
then [he] makes the following claim based on additional travel time of
35 minutes each way:
[He] has travelled to VicPol Academy for 64 working days between
1/9/2014 and 31/12/2014 and an estimated 25 days from 1/1/2015 to
27/2/2015.
• VPS 4.1.11/9/2014 - 31/12/20104 => $72584/yr = $36.61/hr x 1.5 =
$54.91
VPS 4.1.11/1/2015 - 27/2/2015 => $73854/yr = $37.25/hr x 1.5 =
$55.87
• 35 mins = 0.58hrs each way = 1.17hr/day
• 64 X 1.17hr x $54.91 = $2733.25
• 25 X 1.17hr x $55.87 = $1086.35
[2016] FWC 2977
• $2733.25 + $1086.35 = $3819.60
CPSU on [his] behalf seeks $3819.60 as overtime to be paid in the next
pay period or upon finalisation of [his] final pay after he leaves Victoria
th 5
Police on February 27 .” Victoria Police response, 20 February 2015
“I refer to your letter dated 10 February 2015 regarding the excess travel
dispute listed with the Fair Work Commission (FWC). Victoria Police's
position on this matter remains as previously advised in our letter dated
15 December 2015. As a result of clause one of Appendix 8 of the
Victorian Public Service Workplace Determination 2012, the eligibility
for excess travel for VPS staff is intrinsically linked to Section 85 of the
Victoria Police Force Agreement 2011 which outlines the qualifying
point for payment of excess travel provisions.
Therefore, Victoria Police will not be providing any further settlement
to Ms [CPSU member’s] claim for overtime. Additionally, Victoria
Police does not consider the CPSU's claim on behalf of Mr [CPSU
member’s] under the same clause to be valid and will not be providing
any overtime payment to him. The distance between Narre Warren and
the Police Academy is within a 24 kilometre radius and therefore does
6
not qualify him for excess travel.”
[13] The parties agreed as fact that Victoria Police’s position was;
“9. Victoria Police confirmed its position that the purpose of clause 1, Appendix 8 of
the 2012 Determination was to ensure that VPS employees were subject to the same
eligibility criteria and reimbursement amounts as sworn employees in relation to
7
relocation, travel and meal expenses.”
[14] The following history of the present clauses was also agreed between the parties;
“21. Clause 1, Appendix 8 provides that eligibility and reimbursement of travel, meal
and relocation expenses for Victoria Police VPS employees will be consistent with
sworn employees.
22. Clauses with identical wording to clause 30.8 of the 2012 Determination (with the
exception of the Appendix number) were also contained in the Victorian Public
Service Agreement 2004 (the 2004 VPS Agreement), the Victorian Public Service
Workplace Agreement 2006 and the (2009 Extended and Varied Version) Victorian
Public Service Agreement (2009 VPS Agreement). This clause has always been
contained in that section of the VPS Agreements headed “Reimbursement of
Expenses”.
23. In relation to clause 1 of Appendix 8 (Appendix 11 in the earlier VPS
Agreements), the wording is almost the same except that it was clarified in the 2009
VPS Agreement to indicate that VPS employees must meet the same eligibility criteria
[2016] FWC 2977
as sworn employees. This change was agreed in principle on or before 25 March 2009.
This clarified wording was carried over into the 2012 Determination.
24. Clauses with identical wording to clause 30.9 of the 2012 Determination were also
contained in the 2004 VPS Agreement, the 2006 VPS Agreement and the 2009 VPS
Agreement.
25. Under the 2004 VPS Agreement and 2006 Determination clause 30.9 was located
in the section of the agreements headed “Transfers and Relocations”.
26. In the 2009 VPS Agreement, the clause that was to become 30.9 was moved to that
section of the agreement dealing with “Reimbursement of Expenses”. It remained in
8
that section of the agreement in the 2012 Determination.” (references omitted)
Construction of the Agreement
[15] Interpretation of enterprise agreements requires construction of the words of the
instrument, with the Full Bench in Golden Cockerel setting out the principles for such task. In
that matter, and after an extensive analysis of the subject, the Full Bench summarised the
principles to be applied in the following way;
“[41] From the foregoing, the following principles may be distilled:
9
1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.
2. In construing an enterprise agreement it is first necessary to determine
whether an agreement has a plain meaning or contains an ambiguity.
3. Regard may be had to evidence of surrounding circumstances to assist in
determining whether an ambiguity exists.
4. If the agreement has a plain meaning, evidence of the surrounding
circumstances will not be admitted to contradict the plain language of the
agreement.
5. If the language of the agreement is ambiguous or susceptible to more than
one meaning then evidence of the surrounding circumstance will be admissible
to aide the interpretation of the agreement.
6. Admissible evidence of the surrounding circumstances is evidence of the
objective framework of fact and will include:
(a) evidence of prior negotiations to the extent that the negotiations tend
to establish objective background facts known to all parties and the
subject matter of the agreement;
(b) notorious facts of which knowledge is to be presumed;
[2016] FWC 2977
(c) evidence of matters in common contemplation and constituting a
common assumption.
7. The resolution of a disputed construction of an agreement will turn on the
language of the Agreement understood having regard to its context and
purpose.
8. Context might appear from:
(a) the text of the agreement viewed as a whole;
(b) the disputed provision’s place and arrangement in the agreement;
(c) the legislative context under which the agreement was made and in
which it operates.
9. Where the common intention of the parties is sought to be identified, regard
is not to be had to the subjective intentions or expectations of the parties. A
common intention is identified objectively, that is by reference to that which a
reasonable person would understand by the language the parties have used to
express their agreement.
10. The task of interpreting an agreement does not involve rewriting the
agreement to achieve what might be regarded as a fair or just outcome. The
10
task is always one of interpreting the agreement produced by parties.”
Submissions and evidence
[16] In its submissions the CPSU contends that “clause 30.8 and Appendix 8 apply to
expenses incurred in travelling to a temporary workplace, not to the additional time
11
| travelled”. | Further, it argues that there is no ambiguity associated with clauses 30.8 or 30.9 |
and that extrinsic material need not be considered or admitted by the Commission in its
12
| determination of the dispute. | It does not directly make that same argument in relation to the |
need to consider extrinsic material in respect of Appendix 8. Instead it relies upon what it
understood to be the intended meaning of changes made to what is now appendix 8 in the
2009 Agreement;
“35. Broadly, Victoria Police has argued that, because of the “eligibility” requirement of
Appendix 8 of the Determination, where a VPS is travelling less than the distances
stated in the Sworn Agreement, time travelled should not be regarded as time worked.
36. The eligibility requirement was added to the 2009 Appendix 8 bargained between
Victoria Police and CPSU. It is disputed as to the intent of including that wording in
2009. CPSU witnesses have provided statements about the discussion of the clauses.
Their statements of what the intent of the inclusion differ from what Victoria Police,
13
during meetings to deal with the dispute, has stated was the intent at the time.”
[17] The evidence referred to by the CPSU includes that of Emily Castle, a CPSU Team
Manager, who gave evidence about the compilation of the log of claims relating to the 2009
Agreement. Her evidence includes the following;
[2016] FWC 2977
“4. The previous appendix had aligned the monetary amounts for travel and expenses
with the Sworn Police officers Agreement.
5. The intent was to create parity of access between the sworn and unsworn around
14
those entitlements.”
[18] The CPSU draw their submissions to the following summary about what should be the
disposition of this matter;
“CPSU contends that the meaning of clause 30.9 is clear and unambiguous. Additional
time travelled by an employee to a temporary work location, which is not the
employee’s “usual place or places of work”, is regarded as time worked. This would
mean any additional travel would happen either within the daily working hours or the
15
employee, at their choice would be paid overtime or accrue Time in Lieu.”
[19] For its part Victoria Police do not directly address the question of whether or not they
see the relevant provisions of the 2012 Determination as being ambiguous. Nonetheless
Victoria Police put the position very clearly that the intent of the determination is to give life
to its desire that VPS employees have parity with “sworn” employees of Victoria Police, at
least in respect of the reimbursement of expense provisions. Its submissions in this regard
include the following;
“34. The agency-specific reimbursement arrangement for Victoria Police VPS
employees articulated in clause 30.8 of the 2012 Determination has been in place for
some time: the 2004 VPS Agreement, the 2006 VPS Agreement and the 2009 VPS
Agreement.
35. During the negotiations for the 2009 VPS Appendix, in relation to reimbursement
for travel, meal and relocation expenses, the CPSU made it clear in its Log of Claims
that it wanted to retain the existing reimbursement arrangements. This is also reflected
in the Minutes of Meetings held between the CPSU and Victoria Police to negotiate on
the terms of the Appendix.
36. Victoria Police also wanted to retain the existing reimbursement arrangements for
travel, meal and relocation expenses for VPS employees because it wanted VPS
employees to have parity with sworn employees by being reimbursed the same amount
when they incurred these types of expenses. Victoria Police did however seek one
significant change in relation to clause 1 of the Appendix. Victoria Police sought to
have clause 1 of the Appendix clarified to make it clear that VPS employees would
16
need to meet the same eligibility criteria as sworn employees.” (references omitted) [20] Victoria Police’s submissions regarding the genesis of the disputed provisions
included;
“22. It is not possible to isolate clause 30.9 (excess travel) to argue that it is not part of
this reimbursement scheme. It is subsumed under the heading “Reimbursement” and
its essence is to ensure that employees are not out of pocket for expenses actually and
necessarily incurred during the course of performing authorised duties.
[2016] FWC 2977
23. Historically the excess travel clause was located in a different section of the VPS
Agreements. In the 2004 and 2006 VPS Agreements the excess travel clause was
located under the part of the Agreements headed “Transfers and Relocations” and
immediately proceeded [sic] provisions dealing with the employee’s usual place of
work. In the 2009 VPS Agreement and the 2012 Determination the excess travel
clause was moved to the part of the VPS Agreement dealing with “Reimbursement of
Expenses” and no longer immediately proceeded [sic] or had any connection with the
usual place of work provisions. This movement of the excess travel clause to the
section of the VPS Agreement dealing with “reimbursement” and out of the section
dealing with relocation and usual place of work strengthens the argument that excess
17
travel is part of a scheme of reimbursement.” (references omitted) [21] In summary, Victoria Police put the following forward as its interpretation of the
provisions requiring determination in this decision;
“27. The words in clause 1 of Appendix 8 of the 2012 Determination provide that:
“Eligibility and amounts for reimbursement for travel, meal and relocation
expenses will be consistent with those applied to sworn Employees of Victoria
Police”.
These words read together with clause 30.8.1 make it very clear that Victoria Police
VPS employees who incur travel, meal or relocation expenses will have the same
entitlements as sworn members and will need to meet the same eligibility criteria as
18
sworn members. This is also confirmed by Victoria Police witnesses.” (reference omitted)
Consideration
[22] I turn now to the proper construction of the 2012 Determination, and in doing so will
refer to and follow the Golden Cockerel principles.
1. The AI Act does not apply to the construction of an enterprise agreement made under
| the Act. | |
| [23] | It has not been contended that the Acts Interpretation Act 1901 should apply, and I |
have not had regard to its provisions in my decision.
2. In construing an enterprise agreement it is first necessary to determine whether an
agreement has a plain meaning or contains an ambiguity.
[24] There are three operative clauses requiring consideration in the resolution of this
dispute. Those provisions are clause 30.8 (agency-specific reimbursement arrangements), 30.9
(accessed travelling time) and part 1, clause 1 of Appendix 8 applying to Victoria Police.
[25] As referred to earlier, the CPSU argues there is no ambiguity associated with clauses
30.8 or 30.9. While it does not expressly argue the subject either way in respect of the terms
of the Appendix, a careful reading of the CPSU submissions would give rise to the impression
that while it does not concede an ambiguity within the Appendix and that instead there is a
plain meaning, it desires the Commission to take account of extrinsic material in forming its
[2016] FWC 2977
views not only in respect of the meaning of the Appendix, but the other disputed clauses as
well. The extrinsic evidence to which the CPSU pointsis in the form of short evidence about
the negotiations of the 2009 Agreement.
[26] It also relies upon the oral evidence of Ms Castle, the statement of Catherine Davies,
19
| the CPSU’s Branch Assistant Secretary, and the terms of the Agreed Statements of Facts | . |
[27] For its part, Victoria Police rely upon the Agreed Statements of Fact as well as the oral
evidence of Jodi Gilbert, Portfolio Manager, Workplace Relations, and Jacqueline Carlin, now
of the Australian New Zealand Police Advisory Agency, but formerly a person employed by
Victoria Police and who was involved in several rounds of enterprise bargaining.
[28] I consider that the provisions of the disputed clauses have a plain meaning and do not
contain an ambiguity. In forming that view, I have taken into account the admissible evidence
of the surrounding circumstances that led to the disputed clauses. The question of
admissibility of evidence for this purpose is discussed below.
[29] I turn to the plain meaning of the clauses.
[30] Clauses 30.8 and 30.9 are, of course, part of the broader provisions of clause 30, which
deal with reimbursement of expenses. There are several other parts of that clause which are
relevant to determination of the plain meaning of clauses 30.8 and 30.9.
[31] Clause 30.1 and 30.2 set out the following general provisions;
“30 REIMBURSEMENT OF EXPENSES
30.1 General provisions
30.1.1 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.
30.1.2 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.
30.1.3 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.
30.2 Allowable expenses
Allowable expenses include:
30.2.1 travelling, accommodation, meals and other incidental expenses
associated with an overnight absence from home or part day duties away from
the normal work location; and
[2016] FWC 2977
30.2.2 expenses incurred in using private mobile and home phones in
accordance with clause 30.3; and
30.2.3 expenses incurred in using private vehicles in accordance with clause
30.4.”
[32] Clause 30.4 provides for reimbursement for expenses associated with the use of their
private motor vehicle.
[33] Clause 30.5 provides for how claims for reimbursement are to be made. Other than in
the limited case of use of a private motor vehicle, an employee must provide to their employer
either “official receipts” or a declaration that the expense was incurred;
“30.5 Expense claims
30.5.1 An Employee must submit to the Employer official receipts
substantiating allowable expenses incurred by the Employee as soon as
practical after incurring the expense, except where the Employee uses his/her
own motor vehicle for work purposes in which case the Employee will submit
a declaration in accordance with clause 30.4.3.
30.5.2 A declaration from the Employee that the expense was incurred may be
accepted by the Employer if the official receipt is lost or misplaced, and
suitable verification can be made. A declaration from the Employee that an
incidental expense was incurred may be accepted if the Employer and the
Employee agree that the obtaining of a receipt was impractical.”
[34] Clause 30.6 provides for the time periods within which payments are to be made after
the submission of a claim. Clause 30.7 allows for the provision of “an advance for the
expected costs associated with work related travel or any other exercise” where future
expenses are likely to be incurred.
[35] Clause 30.10 provides for the payment of a once only disturbance allowance where an
employee is permanently relocated to a new work location, with the clause providing the
following;
“30.10 Permanent relocation of usual place of work
30.10.1 Subject to clause 30.10.4, an Employee who is required by the
Employer to travel to a new work location as a result of transfer or
redeployment, will be paid a once only allowance in compensation for all
disturbance factors arising from transfer or redeployment not otherwise
provided for in this Determination.
30.10.2 The payments in clause 30.10.3 will be as follows:
Date of Effect Payment 1 July 2012 $ 1,192
[2016] FWC 2977
1 July 2013 $ 1,228 1 July 2014 $ 1,268 1 July 2015 $ 1,298 30.10.3 The allowance(s) will be paid on the following basis:
30.10.3(a) an allowance in accordance with clause 30.10.2 for the first 30
minutes of additional total daily travel time required or 30 kilometres
additional daily distance or part thereof; and
30.10.3(b) a further equivalent allowance in accordance with clause 30.10.2 for
each additional 30 minutes or 30 kilometres or part thereof.
30.10.4 An exception to this is that no such allowance will be paid where the
total additional distance to be travelled is ten kilometres or under.”
[36] Clause 30.11 sets out principles for the payment of benefits where it is necessary for
an employee to relocate their residence for work related reasons, providing not only for the
reimbursement of expenses, but also creating an entitlement to “up to three days’ paid leave
associated with the relocation”. Clause 30.12 further defines what are reasonable relocation
expenses.
[37] Consideration of the general provisions of the clause and its whole, together with the
provisions of clauses 30.8 and 30.9, lead to a view that the latter clauses stand independently
of each other.
[38] On the one hand clause 30.8 deals with the reimbursement of certain expenses. Those
expenses, because of the provisions of clause 30.1.1, must be regarded as reimbursement of
an employee’s “reasonable out of pocket expenses actually and necessarily incurred” in the
course of their employment. Axiomatically, there can be no reimbursement of an expense if
an expense has not been incurred. Such expenses, namely those being “reasonable out of
pocket expenses actually and necessarily incurred” are then subject to the codified intention of
the parties indicated in Appendix 8, Part 1, Clause 1. The plain meaning of the provisions of
Appendix 8 would lead to the view that an employee is eligible for such reimbursement in the
same way as a sworn officer of Victoria Police, and is then entitled to payment of the same
amount as might be paid to a sworn officer of Victoria Police.
[39] Clause 30.9 deals with a different situation to that of reimbursement of expenses.
[40] Instead of dealing with reimbursement of expenses, clause 30.9 deals with what should
be done in the case of any additional travelling time that is required to be undertaken by an
employee because they have been “temporarily required to undertake duties at a location other
than his or her usual place or places of work”.
[41] Instead of dealing with the reimbursement of expenses, the beneficial product of the
clause is that any period of additional travelling time is to be regarded as time worked.
[2016] FWC 2977
[42] Of course, the clause establishes a factual question that must first be posed before any
consideration can be had to a latter question of what should be done about the additional
travelling time. That is, if an employee has not been temporarily required to undertake duties
other than at their usual place or places of work, there will be no consideration given to the
additional travelling time, at least under this clause. If the reassignment is temporary, as well
as it being to a location other than the employee’s usual place or places of work, an
entitlement to additional travelling time will arise. Conversely, if the reassignment is
enduring, and is not away from the employee’s usual place or places of work, then there will
be no entitlement to additional travelling time.
[43] Appendix 8, at least in respect of part 1, clause 1, also has a plain meaning and does
not contain an ambiguity. It stipulates that eligibility and amounts for reimbursement for
travel, meal and relocation expenses will be consistent with what is applied to sworn police
officers. When the clause refers to “travel, meal and relocation expenses” three categories
precede the noun, “expenses”. That is the clause should be properly regarded as conditioning
reimbursement for travel expenses, meal expenses and relocation expenses, with the condition
being that the eligibility and quantum of that reimbursement are to be the same as for sworn
police officers.
[44] Although the clause might properly be regarded as providing administrative
employees in Victoria Police with the same regime of expenses as sworn police officers, the
plain meaning of the term in Appendix 8 is for the “reimbursement” of employees. That is
employees are entitled to the same coverage of expenses as sworn police officers when they
have “actually and necessarily incurred” out of pocket expenses because of the things they
have been asked to do in the course of their employment.
[45] Once an expense has been incurred, the employee must submit a “claim”, which must
be documented by “official receipts” or a declaration (cl. 30.5). When appropriate to do so, an
advance payment of future expenses may be sought by an employee (cl. 30.7).
[46] In the usual manner of industrial instruments, some expenses may well be reimbursed
on a dollar-for-dollar basis, such as the reimbursement of the train or bus fare; other expenses
will be reimbursed on the basis of a stipulated surrogate allowance, such as the payment of a
specified amount for accommodation in a particular locality or a per kilometre rate for
distances travelled in one’s own motor vehicle.
[47] In the context of the whole of the 2012 Determination, the plain meaning of the term
“reimbursement” does not extend to additional time worked or travelled. Time worked or
travelled is not in the ordinary or plain meaning of the terms to be regarded as expense which
ought to be reimbursed.
[48] Instead, clause 30.9 deals with the subject matter of excess travelling time and requires
that any period of additional travelling time will be regarded as time worked. While not
prescriptive in regard to how such time will actually be regarded, such is understandable
within an industrial instrument such as the 2012 Determination, in which it can readily be
foreseen that there will be many different ways in which the time worked will be treated. For
example, it could be that in some circumstances a person will have an allowance made for
their excess travelling time within their Ordinary Hours of Work (as defined by clause 32).
Equally it will be foreseeable there will be other circumstances in which the excess travelling
[2016] FWC 2977
time is to be treated as something outside of the Ordinary Hours of Work, with the likely
consequential consideration of time off in lieu or the payment of overtime.
[49] In this regard I take into account that clause 30.9 is not an agency specific clause and
applies to many workplaces other than those of Victoria Police. The language of Appendix 8,
Part 1, Clause 1 could have but does not refer to time, rather it refers to the reimbursement of
expenses.
3. Regard may be had to evidence of surrounding circumstances to assist in determining
whether an ambiguity exists.
[50] The surrounding circumstances to which I was taken include material and statements
20
| from the CPSU and Victoria Police about the process of bargaining. | To the extent that |
evidence has been given to me of the intentions of the bargaining parties, I regard that as
being a subjective analysis which cannot properly be taken into account by me either in
determining whether there is an ambiguity within the disputed terms, or in resolving any such
ambiguity, if found.
[51] In addition, there was some limited documentary material introduced into the evidence
and which is therefore capable of being relied upon by the Commission in the formation of its
view about whether there is an ambiguity or how such ambiguity should be resolved. That
material includes signed heads of agreement between the State of Victoria and the CPSU,
dated 4 May 2009 which set out the stated intentions of the parties near to the end of
bargaining in that round. It also includes minutes of the meeting between Victoria Police and
the CPSU in April 2009 shortly prior to the conclusion of the heads of agreement. To the
extent that it is relevant, those documents provide as follows;
“21 ALLOWANCES - REIMBURSEMENT OF EXPENSES
21.1 Insert a new provision allowing for a declaration by an employee that an
incidental expense was incurred where the obtaining of a receipt was impracticable.
22 USUAL PLACE OF WORK
22.1 Provide a separate clause stating that the employer must determine a usual place
or places of work for the employee.
23 PERMANENT RELOCATION OF USUAL PLACE OR PLACES OF WORK
23.1 Increase the permanent relocation of usual place of work payments by the
percentage movement in salary.
…
50 APPENDIX 11 -VICTORIA POLICE.
50.1 Clarify that the eligibility requirements for reimbursements of expenses are the
same as those that apply to Sworn employees.
21
…”
[2016] FWC 2977
“2. Victoria Police/CPSU Negotiation Status
The negotiation status document (refer attached) was developed by Victoria Police
(VP) to determine the current negotiation status of both parties. This meeting involved
reviewing the document and updating as required.
a. Allowances
In principle agreement between the parties to clarify the current wording to
reflect eligibility requirements and reimbursement.
Action: VP to update the negotiation status document.
22
…”
[52] While I have had regard to the material within those documents, I do not consider that
they demonstrate that an ambiguity exists within the disputed clauses.
4. If the agreement has a plain meaning, evidence of the surrounding circumstances will
not be admitted to contradict the plain language of the agreement.
[53] Since I consider the disputed clauses have a plain meaning, no evidence of
surrounding circumstances has been taken into account by me in this decision.
5. If the language of the agreement is ambiguous or susceptible to more than one
meaning then evidence of the surrounding circumstance will be admissible to aide the
interpretation of the agreement.
[54] The language of the disputed clauses are not ambiguous or susceptible to more than
one meaning, so evidence of the surrounding circumstances has not been admitted.
6. Admissible evidence of the surrounding circumstances is evidence of the objective
framework of fact and will include:
a. evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the
agreement;
b. notorious facts of which knowledge is to be presumed; c. evidence of matters in common contemplation and constituting a common assumption.
[55] I have taken only limited account of the surrounding circumstances of the formation of
the disputed clauses, with that account being restricted to the objective evidence of prior
negotiations in the form of the Victorian Government/CPSU Heads of Agreement May 2009,
23
and the minutes of a bargaining meeting held in April 2009.
7. The resolution of a disputed construction of an agreement will turn on the language of
the Agreement understood having regard to its context and purpose.
8. Context might appear from:
[2016] FWC 2977
a. the text of the agreement viewed as a whole; b. the disputed provision’s place and arrangement in the agreement; c. the legislative context under which the agreement was made and in which it operates.
[56] My decision turns on the language of the 2012 Determination, having regard to its
content and purpose.
9. Where the common intention of the parties is sought to be identified, regard is not to
be had to the subjective intentions or expectations of the parties. A common intention is
identified objectively, that is by reference to that which a reasonable person would
understand by the language the parties have used to express their agreement.
[57] I have not had regard to the subjective intentions or expectations of the parties.
10. The task of interpreting an agreement does not involve rewriting the agreement to
achieve what might be regarded as a fair or just outcome. The task is always one of
interpreting the agreement produced by parties.
[58] I have not undertaken any rewriting of the Agreement in making my decision in this
matter. Instead, I have interpreted the terms of the 2012 Determination. While acknowledging
that Determination is not an enterprise agreement, I have taken account of the fact that the
disputed clauses arise from the product of the parties’ bargaining.
[59] As a result of the foregoing, I answer “yes” to the CPSU Question for Determination,
being in the following terms;
“If an employee travels to a temporary workplace, is any period of additional travelling
time regarded as time worked and not subject to implied constraints of clauses related
to reimbursement of expenses for meal, travel and relocation?”
COMMISSIONER
| Appearances: |
| Mr K Macfarlane and Mr R Laird for the Community and Public Sector Union. |
| Ms J Baker and Mr T McGregor for Victoria Police. |
| Hearing details: |
[2016] FWC 2977
2016.
Melbourne:
31 March.
Printed by authority of the Commonwealth Government Printer
<Price code >
1
AG895510 PR526534.
2
[2014] FWCFB 7447.
3
Exhibit ASOF 1, Agreed Statement of Facts Part 1, Attachment 1.
4
Ibid Attachment 2.
5
Ibid Attachment 5.
6
Ibid Attachment 6.
7
Ibid [9].
8
Ibid [21]-[26].
9
the Acts Interpretation Act 1901 (Cth).
10
[2014] FWCFB 7447 [41].
11
Exhibit A2, CPSU Outline of Submission, [31].
12
Ibid [30].
13
Ibid [35]-[36].
14
Exhibit A1, Witness Statement of Emily Castle, [4]-[5].
15
Exhibit A2 [3].
16
Exhibit R3, Victoria Police Outline of Submission, [34]-[36].
17
Ibid [22]-[23].
18
Ibid [27].
19
Exhibit ASOF 1 and Exhibit ASOF 2, Agreed Statement of Facts Part 2.
20
See for example Exhibit R2, Heads of Agreement May 2009; Exhibit R4, Witness Statement of Jodie Gilbert; Exhibit R6,
Witness Statement of Jacqueline Carlin.
21
Exhibit R2.
22
Exhibit R5, Minutes of Meeting held 7 April 2009.
23
Exhibit R2; Exhibit R5.
1