Flori v State of Queensland (Queensland Police Service)
[2018] QIRC 181
•23 October 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Flori v State of Queensland (Queensland Police Service) [2015] QIRC 181 |
PARTIES: | Flori, Ricky v State of Queensland (Queensland Police Service) |
CASE NO: | B/2015/11 |
PROCEEDING: | Application to recover unpaid wages |
DELIVERED ON: | 23 October 2015 |
HEARING DATE: | 13 August 2015 |
HEARD AT: | Brisbane |
MEMBER: | Industrial Commissioner Black |
ORDERS: | 1. Application dismissed |
| CATCHWORDS: | INDUSTRIAL LAW - APPLICATION FOR UNPAID WAGES - payment of travel allowance conditional on satisfaction of either time or distance criteria - measurements of time and distance resolved on the evidence - consideration of whether route taken can be the most practical or direct route - no discretionary element found to exist. |
| CASES: | Industrial Relations Act 1999 s 278, s 43(4)(b) |
| APPEARANCES: | Mr M. Kilmartin, Adam Wilson Lawyers, appearing on behalf of the Applicant. |
Decision
Introduction
In his application, Mr Ricky Flori ("the applicant") seeks an order for payment of unpaid wages arising from his employment with the Queensland Police Service between 1 May 2012 and 31 October 2014. The amount sought of $48,213.33 relates to alleged unpaid costs of conveyance and travel time.
The central matters for determination are whether the relevant provisions of the Queensland Police Service Determination 2010 and the Queensland Police Certified Agreement 2013 (certified agreement) can be construed to support the payment of the entitlements claimed in the application. For the purposes of determination of this matter the relevant provisions in both instruments are the same.
The entitlement to travel allowance for police officers that are rostered away from their usual station is found in cl 22 (7)(a)(ii) of the certified agreement. This clause provides that an employee who satisfies specified conditions will be entitled to travel time in accordance with cl 65 of the Agreement, and cost of conveyance as prescribed in cl 25 of the Agreement and cl 5.2.3 of the Police Service Award - State 2012.
Provisions to be Applied
The provisions in the certified agreement relevant to the determination of the matter are set out below:
Clause 22(7)(a)(ii):
An employee;
§ rostered to work in a location (other than their appointed division) that requires travel in excess of 40 kilometres from their current residence; or
§ the total travelling time each way is more than 30 minutes in addition to the time (excluding exceptional and unexpected delays) the employee would normally travel to and from the employee's residence and usual station;
Will be entitled to travel time in accordance with cl 65 of this Agreement and cost of conveyance prescribed at cl 25 of this Agreement and cl 5.2.3 of the Police Service Award - State 2012.
Clause 65(3):
a) Travelling time shall be compensated by payment at single time rates calculated on the basis of the period of time to the nearest quarter of an hour that was reasonably taken by the most practicable direct route using approved means of transport. Payments for travel time do not form part of an employee's base salary and are not to be included for the purposes of paying any allowance or penalty pursuant to an industrial instrument.
b) Travelling time is not compensated during rostered shifts or overtime.
c) Compensation for travelling time does not affect an employee’s entitlement to other travelling allowances or expenses that would otherwise apply pursuant to the relevant industrial instrument.
Clause 25:
The amount prescribed in cl 5.2.3(a) of the Award is set in accordance with the Automobile 1601cc to 2600cc rate applicable to public service officers through Directive No. 14/10 issued pursuant to the Public Service Act 2008 which may be amended from time to time. The amount prescribed in cl 5.2.3(a) of the Award will be increased from the same effective date as any future increase to the Automobile 1601cc to 2600cc rate as prescribed in the Directive.
Evidence
During the proceedings evidence was called from four witnesses:
§ Sergeant Ricky Flori (Applicant)
§ Stephen Hollands (Acting Assistant Commissioner of Police)
§ Madonna Pringle (Officer in charge of Beenleigh Police Communications Centre)
§ Doneena Henry (Acting Senior Sergeant, Operational Regional Section)
Factual Background
The background facts relevant to the determination of the application were not in dispute and are set out below:
§ The applicant is employed by the Queensland Police Service at the rank of Sergeant. His substantive position is based at the Surfers Paradise Police Station;
§ The Surfers Paradise Police Station is located at 20 Orchid Avenue, Surfers Paradise;
§ On 16 March 2012, the applicant was directed to work away from his home station of Surfers Paradise and to work at the Beenleigh Communications Centre;
§ The Beenleigh Communications Centre is located at 3 Kent Street, Beenleigh;
§ The applicant worked at the Beenleigh Communications Centre from 19 March 2012 to 12 December 2014;
§ The applicant was paid travel allowance from 19 March 2012 until 1 May 2012;
§ The Surfers Paradise Police Station is located within the Gold Coast police district and Beenleigh Communications is located within the Logan police district. Both districts are located in the South Eastern police region.
Questions to be Answered
For the application to be granted, one or both of the following conditions must be satisfied:
(i) The applicant was required to travel in excess of 40 kilometres from his place of residence to the Beenleigh Communications Centre; or
(ii) The applicant's travelling time to work at Beenleigh was more than 30 minutes in addition to the time (excluding exceptional and unexpected delays) that he would have normally travelled from his residence to his usual station (Surfers Paradise Police Station).
Distance
The determinative consideration is whether the journey that the applicant was required to take from his residence to the Beenleigh Communications Centre required him to travel in excess of 40 kilometres. While the applicant submitted that the interpretation of the provision governing this limb of the entitlement should be applied flexibly, the provision does not contain any discretionary element and subjective considerations of convenience or preference in terms of the route traversed are not relevant to the interpretation.
The applicant relied on the provisions of cl 65(3) of the certified agreement to promote a position that the first limb of cl 22(7)(a)(ii) could be satisfied if the distance travelled involved a journey using the "the most direct and practical route". Clause 65(3) provides that travelling time is to be calculated by reference to "the period of time to the nearest quarter of an hour that was reasonably taken by the most practicable direct route".
However I accept the submission of the respondent that the criteria specified in cl 22(7)(a)(ii) are conditions precedent which must be satisfied before any consideration can be given to any other clause of the certified agreement. While there is some inconsistency in the expression of the terms of cl 22 and cl 65 under consideration, this inconsistency cannot be relied on to dilute or alter the clear and unambiguous expression of the criteria set out in cl 22(7)(a)(ii) of the certified agreement.
The applicant also argued that the word "requires" included in the expression of the first limb of cl 22(7)(a)(ii) should not be interpreted narrowly and its use should not preclude consideration of the most practicable route. However I am unable to agree that anything other than the ordinary meaning of the word should be ascribed to it. The purpose of the clause is to demark circumstances in which an entitlement to travel allowance might exist. The demarcation is effected by specifying an objective measure (distance between two locations) which must be exceeded before an entitlement exists. Necessarily, to preserve the efficacy of the provision, the distance must be measured by the shortest or the most direct route. The location (Beenleigh Communication Centre) must require the applicant to travel more than 40 kilometres before an entitlement exists. As previously stated, personal preferences or subjective views about convenience, are not to be imported into a consideration of the objective measure specified.
The simple enquiry to be made and answered is: what is the distance via the shortest available route between the applicant's place of residence and 3 Kent Street, Beenleigh? If the distance is in excess of 40 kilometres, the applicant must succeed in his application.
The applicant's evidence was that the distance from his residence to the Beenleigh Communications Centre was just over 41 kilometres, while the distance from the Beenleigh Communications Centre to his residence was just over 40 kilometres. These distances however were measured using the applicant's preferred route which involved accessing the Pacific Motorway via the Southport-Nerang Road.
The respondent's evidence was that the route taken by the applicant was not however the shortest route which they asserted involved accessing the Pacific Motorway via Olsen Avenue and the Smith Street Motorway. Using the Smith Street route, the respondent's evidence was that the distance from home to work was 38.1 kilometres, while the return trip was measured at either 38.3 kilometres or 38.1 kilometres. These distances were measured using police vehicles with certified odometers. The respondent also tendered in Exhibit 5 a map accessed through the RACQ website which measured the distance from the communications centre to the applicant's home at 39.25 kilometres. A further map from the same website (Exhibit 10) measured the distance from the applicant's home to the communications centre at 38.83 kilometres.
I have no reason to doubt the reliability of the respondent's evidence which establishes that the distance from the applicant's place of residence and his work location is less than 40 kilometres. Nor did the applicant lead any evidence contesting the respondent's measurements. In the circumstances the applicant relies solely on the submission that the most practical route should be determinative. Given that I have declined to accept this submission, it is concluded that the applicant cannot satisfy the criteria set out in the first limb of cl 22(7)(a)(ii).
Time
This criteria requires a determination to be made of the time taken by the applicant to travel from his residence to the Surfers Paradise Police Station and also of the time taken by the applicant to travel from his residence to the Beenleigh Communications Centre.
In terms of the journey from his residence to Beenleigh, it was the applicant's evidence that the time taken to travel to Beenleigh was 38 minutes and that the return trip took 37 minutes. In travelling to and from work the applicant used the Nerang-Southport road and did not use Smith Street.
The respondent's measurement of the time taken was different. It was the evidence of Senior Sergeant Pringle that based on a trip she undertook on 4 August 2015, the travel time from the Beenleigh Communications Centre to the applicant's residence was 30.5 minutes, with the return trip taking just under 32 minutes. On both legs Senior Sergeant Pringle traversed the same route used by the applicant (Nerang-Southport Road).
The journey was also undertaken by Acting Senior Sergeant Henry on both 5 August and 6 August 2015. She said that the trip from the applicant's residence to Beenleigh took either 30 minutes or 25 minutes, while the return leg took either 30 minutes or 27 minutes. However the route taken on these trips included travel via Smith Street, not via the Southport-Nerang Road. Finally, the RACQ Trip Planner data included in Exhibits 5 and 10 suggested that the travel time from Beenleigh to the applicant's residence was about 24 minutes, while the return travel was about 23 minutes.
The respondent invited the Commission to validate the measurements provided by reference to theoretical calculations based on the distance travelled, the standard of the roads, and an anticipated travel speed. In this regard the proposition was something to the effect that if the 40 kilometre journey could be completed at an average speed of 90 kilometres per hour, then the time taken should not exceed 27 minutes. Alternatively at an average speed of 80 kilometres an hour the time taken should not exceed 30 minutes. Conversely for the applicant to take 38 minutes to travel from his residence to Beenleigh Communications Centre, he would have travelled at an average speed of 65 kilometres per hour.
Relevant considerations in terms of evaluating the accuracy of these estimates include that most of the travel is undertaken on a section of the Pacific Motorway where a speed limit of 110 kilometres per hour operates and that the applicant's travel to and from work was always undertaken outside of peak commuter travel periods. In this regard it was Senior Sergeant Pringle's evidence that the applicant rotated through three shifts viz 6.00 am to 2.00 pm; 2.00 pm to 10.00 pm; and 10.00 pm to 6.00 am.
The applicant on the other hand maintained that the respondent's estimates of time were completed after the completion of major road works affecting the Smith Street Motorway and the Olsen Avenue interchange. It was submitted that if the respondent's witnesses had travelled this route during periods when construction work was in progress, they would have experienced considerable delays and their estimates of time would have been significantly longer.
I am not prepared to accede to this line of argument. Firstly, while the general proposition was launched that the upgrade could be expected to add to travel times, the applicant did not travel to work via Smith Street and could not give first hand evidence of delays. Further, in terms of information drawn from other sources, the applicant did not provide sufficient and specific evidence about the extent of delays, and the times that delays were typically encountered. Secondly, if the applicant had travelled to work via Smith Street, he would have traversed this section of road outside of peak commuting times when construction work may have been less disruptive. Thirdly, Acting Commissioner Holland and Ms Henry were both familiar with the sections of road in question and had regularly traversed Smith Street. They both denied that any significant disruption had been cause by the upgrade. Fourthly, most of the upgrade work may have fallen outside of the period of time relevant to the determination of this application.
The applicant's evidence included as Attachment B to Exhibit 2 established that construction work associated with the upgrade did not start until May 2014. Attachment B also included a bulletin on major traffic changes which advised of particular traffic changes between 26 October 2014 and 21 November 2014 and between 26 October 2014 and 5 December 2014. These changes were all but irrelevant to the applicant's claim which covered a period ending 31 October 2014. Finally cl 22(7)(a)(ii) provides that in determining the travel time "exceptional and unexpected delays" were to be excluded. In these circumstances, if delays were caused by the upgrade, some of them might fit the description of exceptional or unexpected delays.
In terms of travel from the applicant's residence to the Surfers Paradise Police Station, it was the applicant's evidence that both legs of this journey took him 8 minutes. Ms Henry's evidence however was that the journey took either 12 minutes or 10 minutes in travelling to the Station and either 20 minutes or 12 minutes in travelling from the Station to the applicant's residence. The time of 12 minutes for the journey to the Station was recorded around 2.30 pm on Wednesday 5 August 2015. The time of 20 minutes for the journey from the Station to residence was recorded around 3.00 pm on the same day. The time of 10 minutes for the journey to the Station was recorded around 6.30 am on Thursday 6 August 2015 while the time of 12 minutes for the journey from the Station to the residence was recorded around 7.00 am on the same day. The applicant said that his measurement of travel time was based on travel commencing from his residence at 6.39 am on Wednesday 12 August 2015, and travel from the Surfers Paradise Police Station at 6.47 am on the same day.
Ms Henry used the Beach Road car park in Surfers Paradise as the point of destination on the basis that the applicant would have had to park his vehicle in this facility. She said that the car park was about 400 metres to 500 metres from the Police Station. However it was the applicant's evidence that he was able to park at the Police Station in Orchid Avenue and he did not use the Beach Road car park. The effect of the use of the car park as the destination was that the travel time from home to work would have been slightly understated and the travel time from work to home would have been slightly overstated.
Again, in respect to these journeys, the respondent suggested that the accuracy of the evidence might be tested against theoretical calculations. It was Acting Senior Sergeant Henry's evidence that the applicant's residence was located 6.3 kilometres from the Surfers Paradise Police Station. If an average speed of 60 kilometres per hour were able to be maintained, this journey would take 6.3 minutes. Given that seven sets of traffic lights were to be navigated in the journey and that the maximum speed permissible for the greater part of the journey would be 60 kilometres per hour, I do not accept that an average speed of 60 kilometers per hour could be maintained. The applicant however said that the journey took 8 minutes. This would require an average speed per hour of around 48 kilometres per hour.
While it is accepted that road conditions around Surfers Paradise can be congested, the applicant said that he travelled to work by motorcycle and that this mode of transport enabled him to reduce the time otherwise taken in a conventional motor vehicle. In my view the evidence and submissions support a balance of probabilities finding that the time taken by the applicant to travel from his home to the Surfers Paradise Police Station should be assessed between 8 and 10 minutes each way. But I will proceed on the basis that the time should be considered to be 8 minutes.
Given this finding, for the applicant to qualify for travel payments, his journey from his residence to the Beenleigh Communications Centre and return had to be undertaken in more than 38 minutes.
In this regard the applicant said in paragraph 11 of Exhibit 2 that "the usual time that it would take to travel to Beenleigh and the return journey home" was 38 minutes. At paragraph 29 of Exhibit 2 he said that he left home at 7.00 am on Wednesday 12 August 2015 and arrived at the Beenleigh Communication Centre at 7.38 am. He then said the return journey took him 37 minutes. If I accept this evidence as it stands, it means that the applicant is stating that his travel time from home to Beenleigh did not exceed 38 minutes. Given that qualification for a travel allowance under the second limb of cl 22(7)(a)(ii) requires travel of more than 38 minutes, then, on his own evidence, the applicant cannot succeed with his application.
However given that a lot turns on very small differences in time and distance, it is the more appropriate course that the application be decided by reference to all the evidence and submissions before the Commission. In this regard the evidence and submissions disclose that the applicant's nominated time of 38 minutes is not consistent with any of the times attributable to other persons or sources. The following considerations are relevant:
(i) The inconsistency, in part, may be explained by the fact that the applicant's measure of time was derived from travel via the Nerang-Southport Road rather than travel via the Smith Street Motorway;
(ii) The inconsistency may also be explained by the fact that, when the applicant measured time travelled on 12 August 2015, he departed from his home at 7.00 am which was at least one and a half hours later than he would normally leave home to start the day shift. A 7.00 am departure may have the effect of including parts of the travel in peak commuting times;
(iii) Despite travelling the same route as the applicant (albeit at different times), Ms Pringle recorded travel times of 30.5 minutes and 32 minutes;
(iv) Ms Henry's times for the journey, using Smith Street, were all 30 minutes or less (30 minutes (twice), 27 minutes, and 25 minutes);
(v) The RACQ Trip Planner measured the journey time at either 24 minutes or 23 minutes;
(vi) The theoretical calculations suggest that the travel time should be significantly under 38 minutes. Exhibits 5 and 10 establish that almost 80 per cent of the journey (about 30 kilometres) is completed on the Pacific Motorway. Under standard driving conditions this section of the journey would take approximately 18 minutes. It is difficult to accept that under normal conditions the other parts of the journey (about 8 km to 9 km) could not be completed under 20 minutes;
(vii) The google maps of the journey included in Attachment A to Exhibit 2 record journey times of 29 minutes and 34 minutes.
In my view, the evidence and submissions support a balance of probabilities finding that the time taken by the applicant to travel from his home to the Beenleigh Communications Centre and return was significantly less than 38 minutes (one way) and it was more probable than not that the journey time would be 30 minutes.
The applicant tried to deal with the shortfall in time by advocating a "door to door" calculation for travel time, but no specific measurement of the time taken to travel from a parked car to the front doors of the communication centre was advanced. Nor was any evidence led to the effect that upon his arrival at the Beenleigh Communications Centre the applicant experienced difficulties with parking, or that other events occurred which delayed the applicant's arrival at the doors of the communication centre. I am not persuaded that this proposition, even if it were acceded to in principle, could account for the quantum of time necessary to bring the applicant above the 38 minute benchmark.
Other Matters
A number of other matters were in contention during the proceedings. These matters are listed below, but given my decision on the substantive issues, only the first of these matters requires consideration:
(i) What inference, if any, should be drawn from the fact that the applicant was paid travel allowance for a short period of time after commencement at Beenleigh;
(ii) Whether Beenleigh became the applicant’s usual station;
(iii) Whether the QPS has contravened s 667 of the Industrial Relations Act in allegedly inducing the applicant to accept reduced benefits.
I accept the respondent's position that no inference should be drawn arising from the fact that the applicant was paid travel allowances for the first six weeks of his period of service at the Beenleigh Communications Centre. Given the explanation provided by Senior Sergeant Pringle in her evidence to the effect that the travel allowance was paid as an incentive to encourage attendance in the training program from officers who resided outside of the area, I decline to draw any inference that might support grant of the application. Ms Pringle's evidence at T1-71 is set out below:
"Okay. So initially he was paid a travel entitlement, a travel allowance, wasn’t he?‑‑‑He was.
And so did -was that required to be approved by you?‑‑‑No.
It wasn’t?‑‑‑No. That was an arrangement that all of the relievers who came up to help us during that training component which is what I think you’re referring to when you say that Rick was paid initially travelling allowance.
Yes?‑‑‑That was an agreement that was struck by the region to help us. Gold Coast district and Logan district make up south east region. So we had relievers from predominantly Gold Coast who were coming up to help us with that transition phase. So - and part of that was - part of that arrangement was that they would be paid travel allowance because some of them were quite resistant as well to coming up because they didn’t want to travel that period. So travel allowance was part of their entitlement."
Further it is relevant that the temporary nature of the travel payment had been explained to the applicant by Ms Pringle in an email she sent to the applicant on 11 April 2012. In the email, which is in the evidence as Attachment B to Exhibit 1, Ms Pringle had said in effect that the travel payment was linked to the conduct of QCAD training and that once the training ended, so did the payment of the allowance.
Conclusion
The application is rejected. I order accordingly.
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