Graham Dyer v Australian Federal Police

[2020] FWC 2452

[2020] FWC 2452

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009 (Cth)
s.615A – Application for the President to direct a Full Bench to perform a function

Graham Dyer
v
Australian Federal Police
(C2020/2247)

JUSTICE ROSS, PRESIDENT MELBOURNE, 11 MAY 2020

Referral to a Full Bench – ss 615A, 615 and 739 of the Fair Work Act 2009 (Cth) - application refused.

[1] Mr Graham Dyer (the Applicant) has applied for a direction pursuant to s.615A of the Fair Work Act 2009 that a matter be referred to a Full Bench of the Commission. The matter to which the referral application relates is an application to deal with a dispute lodged by the Applicant on 9 April 2020, pursuant to s.739 of the Act. The relevant background may be shortly stated.

[2] On 17 July 2006, while employed by the AFP, the Applicant was involved in a motor vehicle accident. At the relevant time the Applicant held a substantive Band 3.5 level position and was acting on higher duties at a Band 6.1 level. The Applicant made a subsequent claim to Comcare which was the subject of a consent order before the Administrative Appeals Tribunal which determined that the Applicant’s normal weekly earnings was that of a Band 6.1 level employee.

[3] The s.739 dispute concerns the amount of superannuation contribution the AFP should be making to the Applicant’s Public Service Superannuation (PSS) Fund on his behalf. Specifically, the Applicant alleges that the AFP has made superannuation contributions based on the incorrect Band 3.1 level under the Enterprise Agreements which applied during the relevant periods of employment, as opposed to the Band 6.1 level.

[4] The Applicant seeks an order declaring that the amount of superannuation contributions from the time he returned to work, being 4 September 2007, are those applicable to a Band 6.1 rather than a Band 3.5 employee, and an order that the Respondent backpay the deficiency in contributions since 4 September 2007.

[5] The Applicant submits that there is a public interest in the transfer to the Full Bench for the following reasons:

(a) To resolve the jurisdictional issue left outstanding in Hegarty and Commonwealth [2015] FWC 5372and Hegarty v Commonwealth [2016] FWC 117.

(b) There are other AFP officers whose entitlements depend on the outcome of this dispute.’

[6] As to the first point, the Applicant contends, at [30] of the s.739 application,:

‘There may be an argument over whether a dispute concerning the proper construction of the AFP Agreement and the PSS Rules is a ‘dispute arising under [the] Agreement’. The issue was addressed by Commissioner Bissett in Hegarty and Commonwealth [2015] FWC 5372 and Hegarty v Commonwealth[2016] FWC 117. The Commissioner found jurisdiction but then concluded that she lacked the power to provide a remedy other than the Commonwealth behaving as a model litigant and voluntarily apply her order. It does not seem that the decision was appealed.’

[7] The AFP filed a submission opposing the referral to a Full Bench.

[8] The AFP contends that it would be premature for me to determine that it would be in the public interest to direct this matter be heard by a Full ‘at this stage’. Instead, the AFP submits that it is more appropriate for the matter to be referred to a conference before a single member of the Commission.

[9] The AFP submits that the application raises a number of complex jurisdictional, factual and legal issues which would be best resolved first through conference, and a decision of a single member, if necessary. These issues are said to include:

(a) whether the dispute arises under the Australian Federal Police Enterprise Agreement 2017-2020 (2017 EA) (which applies to the applicant’s employment with the AFP but no provision of the 2017 EA is identified in the Application). If the dispute cannot be characterized as arising under an agreement in operation, the Commission will have no jurisdiction (CFMEU v North Goonyella Coal Mines Pty Ltd[2016] FWC 8360);

(b) whether Mr Dyer has met the internal dispute resolution steps required by section 71 of the 2017 EA, which include raising the matter with his supervisor, and referring the matter to the AFP’s Industrial Relations team, which does not appear to have occurred in these circumstances; and

(c) if the Commission has jurisdiction, the correct application of Commonwealth superannuation law to Mr Dyer’s factual circumstances.

[10] The AFP submits (at [6]-[7]) that:

‘There does not appear to be a sufficient public interest in having the matter determined by a Full Bench at this early stage. Mr Dyer’s claim involves the application of a particular industrial instrument to a particular employee’s circumstances. There is no broader application beyond the AFP. Even if there are additional AFP employees with similar circumstances to Mr Dyer’s (and the AFP reserves its position as to whether there are any such employees), determining Mr Dyer’s dispute will not necessarily resolve those claims, as each dispute will turn on its own facts.

Finally, the AFP does not see any broader public interest in relation to the Hegarty decisions cited in Mr Dyer’s application. These decisions related to specific terms in one employer’s industrial instrument and the application of the ‘…well accepted principle that prior to exercising any power to resolve a dispute said to arise under an agreement the Commission must correctly characterise that dispute’ (see Hegarty v Commonwealth of Australia (acting through and represented by the Bureau of Meteorology [2015] FWC 5372 at [14]). They do not serve as a precedent for the general proposition of whether Commonwealth employees can raise disputes about their superannuation entitlements in the Commission. That question must necessarily always turn on the construction of the relevant enterprise agreement in each particular case. Mr Dyer also asserts that there is ‘ambiguity’ in the Hegarty decisions. This assertion is unparticularised and not otherwise apparent to the AFP.’

[11] In a reply submission filed on 5 May 2020 by the Applicant’s solicitors submitted that the Applicant did not agree with the AFP submission, for the reasons it sets out.

[12] As I have mentioned, the Applicant seeks a direction, pursuant to s.615A of the FW Act, that the dispute be referred to a Full Bench to hear and determine.

[13] Section 615A of the FW Act states:

615A When the President must direct a Full Bench to perform function etc.

(1) The President must direct a Full Bench to perform a function or exercise a power in relation to a matter if:

(a) an application is made under subsection (2); and

(b) the President is satisfied that it is in the public interest to do so.

Note: The President gives directions under section 582.

(2) The following persons may apply to the FWC to have a Full Bench perform a function or exercise a power in relation to a matter:

(a) a person who has made, or will make, submissions for consideration in the matter;

(b) the Minister.

[14] In Collinsville Coal Operations Pty Limited, 1 I set out the considerations relevant to the determination of such applications, as follows:

‘[5] The issue for determination is whether I am satisfied that it is in the public interest to refer the agreement approval application to a Full Bench. The expression 'in the public interest', when used in a statute, imports a discretionary value judgment to be made by reference to undefined factual matters and confined only by the subject matter, scope and purpose of the relevant statute. [O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ]

[6] Sections 577 and 578 of the FW Act are relevant to the exercise of the President’s powers under s 615A.

[7] Section 577 provides as follows:

“The FWC must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.

Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).”

[8] Section 578 directs the Commission to take into account, among other things, the objects of the FW Act and ‘equity, good conscience and the merits of the matter’.

[9] Section 581 is also apposite. It provides, relevantly, that the President is responsible for ensuring that the Commission performs its functions and exercises its powers in an efficient manner.’

[15] Similar observations were made in Lend Lease Building Pty Ltd and others 2 and Metropolitan Fire & Emergency Services Board.3

[16] I am not persuaded that it is in the public interest to refer this dispute to a Full Bench.

[17] Three matters tell against granting the referral.

[18] First, it is apparent that at least some of the relevant facts are in dispute. Indeed, in his reply submissions the Applicant states:

‘The facts are largely not in dispute and should be the subject of agreement.’ (emphasis added)

[19] Second, the substantive application directly relates to one employee. The Applicant asserts that the determination of the dispute ‘may apply’ to any of the AFP officers who perform higher duties and are in receipt of Comcare payments. This assertion may or may not be correct. But there is simply no evidence in support of the point advanced. Similarly, the Applicant submits that the AFP Association ‘is supportive of the present application’, but no submission has been filed by the AFP Association.

[20] Third, this is not a case where there are inconsistent first instance or Full Bench decisions in relation to the matter in dispute. In the event that the approach taken by Commissioner Bissett in Hagerty were adopted in the present matter it may not produce an outcome in favour of Mr Dwyer; but that does not mean that the public interest is enlivened such as to warrant the referral of the dispute to a Full Bench.

[21] For the reasons given I am not persuaded that it is appropriate to refer the dispute to a Full Bench. Accordingly, I dismiss the Applicant’s application.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2014] FWC 3129

 2   [2014] FWC 5026 at paragraphs [5]-[8]

 3   [2014] FWC 2498 at paragraphs [8]-[13]