Mark Stuart Tarbett v Country Fire Authority

[2024] FWC 1731

[2024] FWC 1731

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Mark Stuart Tarbett
v

Country Fire Authority

(C2024/28)

COMMISSIONER TRAN MELBOURNE, 1 JULY 2024

Application to deal with a dispute under an enterprise agreement – travel allowance – payment of allowance in advance

1. In December 2023, the Country Fire Authority (CFA) approved Mr Tarbett’s travel to London for a conference scheduled to take place in February 2024. On 14 December 2023, Mr Tarbett asked for payment of the standard allowance in advance. However, the CFA did not pay Mr Tarbett the allowance in advance. It said that the current Agreement does not permit this. It told him that he could be reimbursed after providing receipts or he could obtain a purchasing card.

1. So, Mr Tarbett brought this dispute to the Commission. The dispute relates to the operation of Clause 37 and Schedule 2 in the Agreement. The question for determination, agreed by the parties at the commencement of the hearing, is:

“From July 2023, is the Applicant entitled to receive a standard allowance in advance prior to travel where he is required to sleep overnight from home including for overseas travel?”

1. I have considered all the parties’ evidence and arguments. Based on the plain and ordinary meaning of the words of the Agreement, my answer to that question is No.

1. My detailed reasons follow.

The Commission has jurisdiction to deal with the dispute

1. Section 595 of the Act provides for the Commission’s power to deal with disputes only if it is expressly authorised to do so or in accordance with another provision of the Act. Section 739 provides for the Commission’s power to deal with a dispute if an enterprise agreement includes a term that provides a procedure for dealing with disputes under s 738(b).

1. The Agreement contains a dispute resolution and settlement procedure in Clause 12. Clause 12.5.2 of the Agreement gives the Commission power to arbitrate the dispute.

1. It is not in dispute between the parties, and I am satisfied, based on the evidence provided by Mr Tarbett and Mr David Johns, Head of Workplace Relations, that Mr Tarbett has followed the procedure in Clause 12 of the Agreement and is able to refer the dispute to Commission for resolution.

Principles when interpreting enterprise agreements

1. The principles of interpretation of enterprise agreements are well settled and have been recently and comprehensively set out by the Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) (188V) v Berri Limited[1] and by the Full Court of the Federal Court in Workpac Pty Ltd v Skene.[2] I do not repeat them here.

Consideration

Is there a plain meaning?

1. Mr Tarbett’s argument does not rely upon any asserted ambiguity in the meaning of the language of the Agreement. Mr Tarbett submitted that Item 7 of Schedule 2 allows for the election by an employee about whether to receive an allowance in accordance with its terms, or be reimbursed. He also says that the CFA had, for the last 15 years, paid an allowance in advance prior to travel in accordance with Schedule 2 of the Agreement.

1. Item 7 of Schedule 2 of the Agreement provides:

“ADVANCE ALLOWANCES

7.1 Where an employee is required to sleep overnight away from home, he or she may opt to receive the Standard Allowance in advance prior to travel.

7.2 Claims that are reasonable and necessary and in excess of the advance may be submitted upon return, provided receipts are lodged with the claim. If an employee returns prior to the original anticipated date and time, any advance received in respect of that period must be adjusted and repaid to CFA.”

1. This appears clear on its terms, which is that if an employee chooses to receive a standard allowance, then it must be paid. The Standard Allowance is “based on the Australian Taxation Office Determination Table 1 for reasonable daily travel allowance amounts where the employee is required to sleep away from home and is payable with no requirement to obtain or submit receipts.”[3]

1. The CFA’s case is that the words of the Agreement are clear. The CFA submitted that the terms of Schedule 2 relating to allowances are subsidiary to Clause 37 of the Agreement, which provides:

“37.       ACCOMMODATION AND PERSONAL EXPENSES

An Employee who necessarily incurs accommodation, meals and incidental expenses in performing their duties will be entitled to reimbursement as prescribed in Schedule 2, subject to the following terms:

37.1 From July 2023 payment of expenses associated with overnight stays will be by way of reimbursement upon production of receipt/s by an Employee. Before July 2023 CFA will create an appropriate process to ensure out of pocket expense for accommodation only occurs in exceptional circumstances. For example, purchase orders and/or preferred supplier arrangements. Where meals are taken outside an accommodation provider's premises employees will be reimbursed by production of receipts. To allow for the implementation of faster process for processing claims this process will be introduced in July 2023, for the financial year 23/24.

37.2 Incidental expenses will continue to be paid as an allowance, with no requirement for receipts.”

1. I agree with the CFA that Schedule 2 is subordinate to Clause 37. Clause 37 is found in the main body of the Agreement and the words “subject to” in Clause 37 clearly indicates that it is to take precedence over the Schedule. The words also clearly provide that from a point in time – being July 2023 – payment of expenses will be by way of reimbursement and no longer by way of advance payment of allowances.

Does this interpretation result in other words in the Agreement having ‘no work to do’?

1. Mr Tarbett argues that, if CFA’s interpretation of Clause 37 is correct, this results in the redundancy of Item 7 of Schedule 2. CFA argues that Schedule 2 continues to have work to do as Clause 37.2 provides for the payment of an allowance in relation to the incurrence of incidental expenses.[4]

1. I agree, and furthermore, Schedule 2 had work to do in that it applied prior to July 2023.

Is there a pre-condition that must be satisfied before Clause 37 operates?

1. Mr Tarbett further argues that CFA cannot rely on 37.1 as it is pre-conditioned on the implementation of an effective automated process and CFA has not yet implemented an effective system for reimbursement. Mr Tarbett also submitted that CFA had not provided advance notification nor consulted about the change in its application of the Agreement by no longer paying the allowance. Mr Lund gave evidence that the CFA had agreed to implement an automated processes but implemented a process without any formal discussions with the consultative committee. Mr Lund also gave evidence that the system that has been implemented is a new manual process (that is, not an automated process) which has caused frustration and further delays, that the implementation was not in good faith and was not otherwise in accordance with the enterprise agreement.

1. Contrary to Mr Lund’s evidence, Mr David Johns, Head of Workplace Relations at CFA, gave evidence that CFA had consulted with the Workplace Consultative Committee in December 2022. In Mr Tarbett’s materials, he provided slides from a training session conducted in August 2023, which was titled, ‘Travel & Reimbursement Policy and Procedures’. One of the slides clearly states that from 1 July 2023, expenses associated with overnight stays will be reimbursed on production of receipts.

1. Clause 37 does not clearly contain a precondition. It deals solely in periods of time: after July 2023, expenses will be reimbursed; and before July 2023, CFA will ‘create an appropriate process.’ There is no requirement that the process be automated or agreed to by employees and any representatives. Mr Johns provided evidence that CFA had consulted about a process; and Mr Tarbett gave evidence of training in relation to that new process. Even if Clause 37 could be read to include a precondition, I am satisfied that the precondition was met by CFA.

I do not have regard to subsequent conduct to aid my interpretation

1. In relation to Mr Tarbett’s argument that reimbursement via submission of receipts is inconvenient and creates delay, particularly when the CFA imposes additional requirements on what constitutes acceptable or reimbursable receipts, this cannot inform the Commission’s interpretation exercise. Even if Mr Tarbett were correct in relation to the inconvenience of the delay and the CFA’s application of the Agreement being oppressive (of which I make no findings), the evidence does not aid in interpretation. Settled principles of interpretation provide that subsequent conduct is only relevant to interpretation where it demonstrates a meeting of minds or consensus about the meaning of a provision.[5] That a provision may operate in a way which is inconvenient or unintended does not negate the plain and ordinary meaning of words used in the Agreement.

I do not have regard to the evidence of negotiations in interpreting the relevant provisions

1. Mr Tarbett’s case is that the CFA had, for the last 15 years, paid an allowance in advance prior to travel in accordance with Schedule 2 of the Agreement. In the most recent agreement, negotiations resulted in Clause 37 which is substantially different to the predecessor agreements. Mr Lund gave evidence about those negotiations. This evidence was not contested, but it does not aid in interpreting the meaning of the relevant provision. First, principles of interpretation mean that I should not have regard to the evidence unless ambiguity in the relevant provisions has been demonstrated.[6] I have earlier found that there is a plain meaning. Second, the evidence provided goes to bargaining positions rather than a common intention.[7]

1. For completeness, I refer to the CFA’s submissions and evidence relating to the introduction of Clause 37 in the current agreement. Mr Johns gave evidence that there were two key issues about which the CFA bargained in its negotiations for the current agreement. The issue relevant to this matter was that the CFA wished to move to a system of reimbursement to comply with auditing and financial requirements. Mr Johns referred to the introduction of broader public sector financial management and accountability under the 2018 standing directions of the Financial Management Act 1994 and various policies and procedures relating to expenditure, employee travel and reimbursement, and purchasing cards. Mr Johns also gave evidence of materials explaining the agreement, which was provided to employees when they were asked to vote on the agreement. These materials detailed the new expense reimbursement process.

1. Again, I do not rely on these materials in my interpretation as I have found no ambiguity in the language of the provisions itself. But I note that the evidence is helpful as it supports the interpretation that payment of expenses would be via reimbursement and not advance allowances. It is also the type of evidence from negotiation that is permissible as it is what employees were told during bargaining, rather than what the parties’ bargaining positions were.[8]

Conclusion

1. The question for determination is:

“From July 2023, is the Applicant entitled to receive a standard allowance in advance prior to travel where he is required to sleep overnight from home including for overseas travel?”

1. For all the above reasons, my answer to this question is No.

COMMISSIONER

Appearances:

M Tarbett on his own behalf.
C McDermott of Counsel, with permission, for the Respondent.

Hearing details:

23 April 2024
Melbourne.

[1] [2017] FWCFB 3005 at [114].

[2] (2018) 264 FCR at [197].

[3] As defined in Item 2 of Schedule 2.

[4] HSU v Mercy Hospitals Victoria Ltd ta/a Werribee Mercy Health[2024] FWCFB 235 at [114]; AMWU v Berri at [44]; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [70] – [71]; Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 240 CLR 45 at 80.

[5] AMWU v Berri at [114], Principle 15.

[6] AMWU v Berri at [114], Principle 9; Golden Cockerel [2014] FWCFB 7447 at [41], Principle 4.

[7] AMWU v Berri at [114], Principle 13.

[8] AMWU v Berri at [114], Principle 13.

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