CPSU, the Community and Public Sector Union v Wodonga Institute of TAFE (Driver Education of Australia Limited)

[2014] FWC 3060

FAIR WORK COMMISSION

EX TEMPORE DECISION

Fair Work Act 2009
s.739—Application to deal with a dispute

CPSU, the Community and Public Sector Union
v
Wodonga Institute of TAFE (Driver Education of Australia Limited)
(C2013/7481)

Educational services
DEPUTY PRESIDENT SMITH	MELBOURNE, 9 MAY 2014

Clause 21.3 of the Agreement; travel and accommodation expenses.

[1] The following decision, now edited, was issued during proceedings conducted on 5 May 2014.

[2] This is an application to settle a dispute arising between the parties over the application of the Driver Education Centre of Australia Limited Enterprise Agreement 2011 [AE899595] [the Agreement]. Authority to settle the dispute is found in Clause 11 of the Agreement. The dispute is said to be about the change in practice of paying travel and accommodation expenses found in Clause 21 of the Agreement.

[3] Wodonga Institute of TAFE (Driver Education Centre of Australia Limited) [Wodonga TAFE] argue that there is no jurisdiction to hear this dispute as there is no dispute, given the terms of the Agreement.

[4] With respect, I am unable to agree. Some history is relevant. In January 2013, Wodonga TAFE took over the Driver Education Centre of Australia Limited. Prior to that time and for a short period after that, the employer adopted the practice of paying in advance the amount prescribed by the Australia Taxation Office [ATO], for travel, accommodation and meals. From about May 2013, the current employer moved to change the practice to only reimbursing expenses up to amount prescribed by the ATO.

[5] Evidence was led from Mr Condy, CPSU, the Community and Public Sector Union [CPSU] Shop Steward, who had over 20 years employment with this employer. His evidence was that there had been a long standing practice of paying the ATO rate for accommodation and meals and that during the negotiations leading to the 2011 Agreement, assurances where given that this would not change, notwithstanding wording changes. This gave employees a sense of comfort.

[6] The employer has changed the practice, and in this sense, I accept there is a dispute about what employees believe to be the proper application of the agreement and what the employer believes to be the proper application of the agreement. The approach to construction of agreements has been referred to by Wodonga TAFE and I rely on the decisions 1 referred to and adopt that approach. The agreement is the instrument I am asked to construe. The current Agreement provides at clause 21.2:

21.2 Employees who reasonably and necessarily incur costs associated with an overnight stay for work purposes shall be eligible to receive reimbursement for such expenses up to the amounts prescribed in 21.8.

[7] There has been some slight change from the 2007 Agreement which provided at clause 14.1:

14.1 Employees will be eligible to receive payment up to the amounts prescribed in Appendix 1 or Appendix 4 whichever is necessarily and reasonably incurred as a result of the travel.

[8] However, it appears to me that the essential tenants remain the same. Employees will be eligible to receive payment up to the amounts prescribed, which are the ATO rates adjusted from time to time when they incur expenses which are necessary and reasonable. In the 2011 Agreement the word “reimbursement” was added.

[9] In my view whilst the word added, adds clarity, it does not significantly alter the meaning. The 2007 Agreement did not guarantee the ATO rate. It stated that employees could receive a payment of ‘up to’ the ATO rate, if the expense was reasonable and necessarily incurred. In short, the expense had to be incurred.

[10] The addition of the word “reimbursement”, whilst adding clarity, did nothing to alter the meaning. The previous employer had a practice, and it is clear from evidence that the practice would continue but the practice was not grounded in the Agreement.

[11] The approach by Wodonga TAFE is different but not inconsistent with the Agreement in its terms. I find that Wodonga TAFE is entitled under the Agreement to reimburse employees who reasonably and necessarily incur costs up to the amount prescribed by the Agreement. To this end, some form of documentation can be required to satisfy the clause that the cost has been reasonably and necessarily incurred.

[12] I do not accept a construction that past practice of paying up front the ATO rates and then only requiring receipts for expenses incurred over the ATO rates reflects the plain meaning of the clause; or for that matter the predecessor clause.

[13] This dispute is now resolved in accordance with the Agreement.

DEPUTY PRESIDENT

Appearances:

M. Price for CPSU, the Community and Public Sector Union.

N. Harrington of counsel on behalf of the Wodonga Institute of TAFE (Driver Education Centre of Australia Limited).

Hearing details:

2014.

Melbourne:

May, 5.

1 [2012] FWA 5678 and [2012] FWA 9374.

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission was a dispute between the Community and Public Sector Union and the Wodonga Institute of TAFE, regarding the interpretation of Clause 21.3 of their enterprise agreement, specifically concerning travel and accommodation expenses. The Union contested the Institute's policy of requiring employees to incur and personally bear the cost of travel and accommodation expenses associated with their work, and then seek reimbursement. The Union argued that the agreement provided for the Institute to cover such expenses directly, without the need for employees to incur out-of-pocket costs.

The primary legal issue before the Commission was the correct interpretation of Clause 21.3 of the agreement, particularly whether the clause mandated that the Institute should cover travel and accommodation expenses directly, or if it allowed for employees to incur such expenses and seek reimbursement. The Commission had to determine the ordinary meaning of the clause, taking into account the broader context of the agreement and any relevant industry practice.

The Fair Work Commission, after examining the language of Clause 21.3 and the overall context of the agreement, found that the ordinary meaning of the clause did not mandate that the Institute should cover travel and accommodation expenses directly. The Commission held that the clause allowed for employees to incur such expenses and seek reimbursement, as long as it was in accordance with the Institute's policies and procedures. The Commission further noted that the agreement did not explicitly prohibit the Institute from implementing a policy of requiring employees to incur and personally bear travel and accommodation expenses, and then seek reimbursement. The orders of the Commission included a determination that the Institute's policy was consistent with the agreement, and that the Union's claim was dismissed.

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