Mr Justin Slater v VicRoads

[2012] FWA 9374

[2012] FWA 9374

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.170LW—pre-reform Act—Application for settlement of dispute (certified agreement)

Mr Justin Slater
v
VicRoads
(C2011/1129)

State and Territory government administration
DEPUTY PRESIDENT SMITH	MELBOURNE, 5 NOVEMBER 2012

Travel expense allowances.

INTRODUCTION

[1] Mr Justin Slater is an employee (Team Leader Geotechnical Risk Management) of VicRoads and raises a concern about the proper application of the agreement know as VicRoads EBA6 (EBA6) [AG845864  PR985331]. His concern relates to the proper application of clauses 34.1 and 34.2. It was appropriate for Mr Slater to raise his concerns

[2] EBA 6 was made under s.170LJ of the Workplace Relations Act 1996 and the jurisdiction is determined by the operation of both the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and clause 89 of EBA6. VicRoads accepts that the Tribunal has jurisdiction to hear and determine the matter. 1

[3] Mr Slater’s argument may be simply put: he argues that the proper application of EBA6 is that where VicRoads does not directly pay for overnight accommodation and/or meals, then the terms of the Australian Tax Office Determination TD 2008/18 as varied or replaced, will apply. Mr Slater has put in a claim for the difference between what he was paid in accordance with VicRoads schedules and the amount he argues is relevant under the ATO determination. He argues that the clause describes an allowance to be paid and not a reimbursement.

[4] VicRoads takes the view that the history of the clause, together with its continual operation, means that particular rates are struck having regard to expenses which are actually and necessarily incurred.

[5] In the proceedings Mr J. Slater represented himself and Mr J. Lauchland from The Association of Professional Engineers, Scientists and Managers Australia (APESMA) sought leave to intervene in the matter in favour of the applicant. APESMA is an interested party because they represent members affected by Mr Slater’s claim and are also a party to the negotiations of EBA6. VicRoads were represented, with permission, by Mr B. Mueller of Counsel. All negotiating parties to EBA6 were notified of the hearing.

THE AGREEMENT AND ARGUMENT

[6] The clauses provide:

34.1 Where an employee is required to work at a place other than his or her usual place of employment and it is unreasonable for the employee to return to his or her own home at night VicRoads may elect to provide or pay directly for the employee’s overnight accommodation and/or meals.

34.2 Where VicRoads does not provide or pay directly for the employee’s overnight accommodation and/or meals in accordance with 34.1, VicRoads will pay the employee an allowance for any expenses actually and necessarily incurred for overnight accommodation and/or meals in accordance with the reasonable allowance amounts in the Australian Taxation Office Determination TD 2008/18 as varied or replaced.

[7] Mr Slater submitted that the dispute was about the rate only of the travel expense paid by VicRoads to employees. He set out some of the history of what he submitted was the practice of VicRoads adjusting travel allowance rates in line with the relevant Australian Taxation Office (ATO) Determination. He submitted that there were discrepancies between what VicRoads published and the relevant Australian Tax Office Determinations which he argued led to anomalies in treatment between various employees.

[8] Mr Slater submitted that the approach by VicRoads to focus on reimbursement of expenses actually and necessarily incurred is inconsistent with the provision of the agreement which permits claims to be made which are based upon the Australian Taxation Office Determination of reasonable expenses. He argued that it is difficult, if not impossible, to provide evidence on all expenditure where tax receipts are not issued. He added that this aspect of the Agreement was never discussed by the bargaining representatives and he was entitled to examine the words and accept their clear meaning.

[9] Mr Slater sought the following determinations:

● A determination is sought on whether I do, or do not, have the right to claim all reasonable allowance amounts listed in the Australian Taxation Office Determination TD 2008/18 as varied or replaced, in accordance with the VicRoads EB6 clause 34.

● A determination is sought as to whether I do, or do not, have the right to payments from VicRoads of the difference between the value of my travel expense allowance claims based on the rates in Australian Tax Office Determination TD 2010/19 and 2011//17 and the part payments made by VicRoads based on the lesser rates in VicRoads’ list of rates for the 2010/2011 and 2011/2012 financial years, respectively.

[10] Mr Slater was content to rely upon his outline of submissions and did not provide evidence.

[11] APESMA made a brief submission that the matter was not discussed during negotiations and the lack of consideration does not lead to acceptance or acquiescence of that issue.

[12] VicRoads called Mr Eric Henderson—the Manager Employee Relations—to give evidence. It was the evidence of Mr Henderson that the origins of the current clause 34 can be dated back to VicRoads EB3 and that it has not changed in the ten year history of the clause. His evidence was that VicRoads construed and applied the clause so that:

“(i) For a claim for overnight accommodation and/or meals to be recognised it must be a claim necessarily and reasonably incurred because the employee was required to work in a place other than the usual place of employment and in circumstances where it was unreasonable for the employee to return to their home at night.

(ii) Subject to the operation of subclauses 34.3 to 34.4, clause 34.5 operates to specify the maximum amount that an employee can be reimbursed by reference to the amounts specified in table 1 of the Determination. If the amount claimed is within that ceiling, the employee is reimbursed the amount claimed.

(iii) Clause 34.3 qualifies clause 34.2 in that it provides that if expenses exceed the amount payable under the clause 34.2 and they are expenses actually and necessarily incurred VicRoads, subject to any required substantiation, is under an obligation to reimburse that expense even though it exceeds the maximum amount specified in table 1.

(iv) Clauses 34.4 and 34.5 provide for additional conditions that for expenses incurred for breakfast and lunch meals, and dinner meals.”

[13] Mr Henderson rejects the proposition of Mr Slater that the employee has an absolute entitlement to be paid the relevant amount in the Determination regardless of whether the employee has actually incurred an expense at that level.

[14] It is argued by VicRoads that to embrace the construction urged upon the Tribunal by Mr Slater, the words “expenses actually and necessarily incurred” would have no meaning.

APPROACH TO CONSTRUCTION

[15] Agreements are to be given their plain and ordinary meaning [Amcor Limited v Construction, Forestry, Mining & Energy Union (2005) 222 CLR 241]. It is also appropriate to have regard to the context and setting in which an agreement is made [K and S Lake City Freighters Pty Ltd v. Gordon & Gotch Ltd (1984) 2 FCR 419 at 426; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 69].

[16] Relevant history must also be considered in construing the instrument as a whole [Federated Municipal and Shire Council Employees Union of Australia v Shire of Albany (1990) 32 IR 470].

CONCLUSION

[17] The history of the provision and its application favours the construction advocated by VicRoads. Added to this, is the language of the provision itself. If the meaning was to be that an employee was reimbursed the amount that the ATO accepts for taxation purposes there would be no reason to include the language—“VicRoads will pay the employee an allowance for any expenses actually and necessarily incurred”. It would not seem consistent with the proper application of the clause that an amount would be paid over and above that actually incurred simply because the ATO permitted a claim up to a certain amount for taxation purposes. I do not place any weight on the use of the word allowance to compromise the meaning of the clause.

[18] I prefer the construction pressed by VicRoads and find accordingly. I am not persuaded to make the determinations sought by Mr Slater.

DEPUTY PRESIDENT

Appearances:

J. Slater the applicant, with J.Lauchland (intervening) for The Association of Professional Engineers, Scientists and Managers Australia.

B. Mueller of Counsel with E. Henderson on behalf of VicRoads.

Hearing details:

2012.

Melbourne:

March, 2.

 1   Written submissions at paragraph 5

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