Police Federation of Australia v Australian Federal Police
[2023] FWC 358
•16 MAY 2023
| [2023] FWC 358 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Police Federation of Australia
v
Australian Federal Police
(C2022/6555)
| DEPUTY PRESIDENT DEAN | CANBERRA, 16 MAY 2023 |
Application to deal with a dispute – payment of higher duties allowance.
The Police Federation of Australia (the Union) has made an application under s.739 of the Fair Work Act 2009 for the Commission to deal with a dispute concerning the payment of Higher Duties Allowance (HDA) under clause 29(6) of the Australian Federal Police Enterprise Agreement 2017-2021 (the Agreement).
The question[1] agreed by the parties for determination is as follows:
“Does clause 29(6) operate to create an ongoing entitlement, once an employee meets the circumstances set out in clause 29(6)(b), for the employee to be paid higher duties allowance at the Increment Point the employee reached for any future periods of higher duties at the same Salary Band?
At the hearing, the Union was represented by Ms Wardle and Australian Federal Police (AFP) was represented by Mr McNulty of Ashurst.
For the reasons set out below, the answer to Question 1 is no.
Statement of Agreed Facts
The parties filed a Statement of Agreed Facts which included the following:
“C Enterprise Agreements
5 On 24 May 2018, the Australian Federal Police Enterprise Agreement 2017 - 2020 ("the EA") commenced. The EA covers the Applicant by operation of section 201(2) of the Fair Work Act 2009 (Cth), and covers and applies to Leading Senior Constable ("LSC") Mccue, Sergeant ("Sgt") David Wright and the Respondent.
6 The EA replaced the agreement known as the Australian Federal Police Enterprise Agreement 2012 -2016, which operated from 8 March 2012 to 23 May 2018 ("the Former EA").
D Leading Senior Constable James Mccue
7 At all times material to this proceeding, LSC Mccue was employed by the Respondent.
8 Between 2012 and 2014, LSC Mccue performed several periods of higher duties at Salary Band 6 under the Former EA. During these periods of higher duties, LSC Mccue was substantively classified at Salary Band 4. LSC Mccue was paid at a salary rate equal to the Salary Band 6 Increment Point 1 for these periods of higher duties
9 On 28 August 2014, the higher duties allowance payable to LSC Mccue was increased and calculated on the next Increment Point (Salary Band 6 Increment Point 2) because LSC Mccue met the circumstance in clause 33(5)(b) of the Former EA.
10 Between August 2014 and August 2018, LSC Mccue undertook further periods of higher duties at the Salary Band 6. During these period of higher duties, LSC Mccue was paid a salary at the Salary Band 6 Increment Point 2 level.
11 Between 29 August 2018 and 8 July 2020, LSC McCue did not undertake any period of higher duties.
12 LSC McCue undertook his next period of higher duties at Salary Band 6 between 9 July 2020 and 21 July 2020. During this period LSC Mccue was initially paid at the Salary Band 6 Increment Point 2 level.
13 On 9 June 2021, the Respondent notified LSC McCue by email that he had been overpaid the amount of $115.03 because he received the incorrect higher duties allowance for the period 9 July 2020 to 21 July 2020.
14 On 10 June 2021, the Respondent sent the Applicant an email with further information in relation to the overpayment.
15 The Applicant sent a letter dated 6 July 2021 on LSC McCue's behalf to the Respondent requesting that the overpayment be withdrawn.
16 On 24 August 2021, the Respondent responded to the Applicant's request.
E Sergeant David Wright
17 At all times material to this proceeding, Sgt Wright was employed by the Respondent.
18 During 2014 and 2015, Sgt Wright performed periods of higher duties at Salary Band 6 under the Former EA. During these periods in which Sgt Wright performed higher duties, Sgt Wright was substantively classified at Salary Band 5.3 and was paid at a salary rate equal to the Salary Band 6 Increment Point 2.
19 On 4 October 2015, the higher duties allowance payable to Sgt Wright was increased and calculated on the next Increment Point (Salary Band 6 Increment Point 3) because Sgt Wright met the circumstance in clause 33(5)(b) of the Former EA.
20 Between 5 October 2015 and 21 March 2018, Sgt Wright performed a role in a different area in his substantive classification of Salary Band 5.3. Sgt Wright did not perform higher duties during this period.
21 From 22 March 2018 to 3 March 2021, Sgt Wright resumed higher duties at Salary Band 6. Sgt Wright was paid at a salary rate equal to the Salary Band 6 Increment Point 3 for periods of higher duties performed between 22 March 2018 and 3 March 2021.
22 On 20 July 2021, the Respondent notified Sgt Wright by email that he had been overpaid the amount of $4,177.76 because Sgt Wright had been paid higher duties allowance at the incorrect Salary Band 6 Increment Point 3 for the periods during which he performed higher duties between 22 March 2018 and 3 March 2021.
23 On 21 July 2021, the Respondent provided further information in relation to the overpayment.”
Clause 29
The relevant parts of clause 29 of the Agreement are as follows:
“29 Higher Duties Allowance
(1)Where an Employee is required to perform the duties of a role at a higher Salary
Band for a period of:
(a)not less than 10 consecutive calendar days for an Employee assigned to the Operations or Rostered Operations working patterns; or
(b)not less than 10 Working Days for an Employee assigned to the Support working pattern or performing higher duties at the Executive or SES levels; or
(c)an aggregate of more than 20 working days in a Financial Year,
the Employee will be paid at a salary rate equivalent to the minimum Increment Point for that higher Salary Band for the entire period of higher duties.
(2)For the purposes of sub-section 29(c), ‘working days’ will be based on an Employee’s normal pattern of attendance during the period where they perform higher duties. Rest Days and Overtime will not count towards the calculation of aggregate days.
(3)Higher duties will be limited to a maximum total period of six months in any role without the role being advertised for an open selection process based on Merit Principles, except where the Commissioner has determined that a longer period of higher duties is appropriate.
(4)In exceptional circumstances, the Commissioner may authorise the payment of higher duties allowance at a higher rate.
(5)An Employee will only receive the Core Composite while on higher duties if the higher duties role is assigned to a Rostered Operations or Operations working pattern or a FTM Role.
(6)Where an Employee has been temporarily undertaking duties at a higher level:
(a)for a continuous period of 12 months; or
(b)there has been temporary assignment of duties at a higher level for a total of 12 months in a 24 month period,
the Employee’s higher duties allowance will be increased and calculated on the next Increment Point within the higher Salary Band.
(7)Higher duties cannot be performed or paid within a broadband under any circumstance.
The case for the Union
The Union contended that, in circumstances where an employee qualifies for the payment of HDA under section 29(6) of the Agreement, the employee is entitled to retain that HDA payment for all future periods of higher duties at the same Salary Band.
In support of this contention, the Union submitted that clause 29 “would need to be substantially re-written and words read into clause 29(6) to provide a power to the AFP to disentitle a member to advancement in future periods of higher duties”. It submitted that such words do not exist within the Agreement and had this been the intention, such words would have been included.
The Union went on to submit that:
“10.The purpose of section 29(6) of the EA is to provide a benefit to the employee by way of recognition of developing skills and experience while acting at a higher level, subsequently rewarding the employee with an incremental advancement. The provision recognises the benefits to employers with respect to employees gaining skills and experience; employees are likely to be better able to perform their work, undertake work to a higher standard and undertake their work more efficiently. Section 29(6) provides an entitlement to employee. As such, as it expressly gives entitlement, if there was an intent to remove such entitlements, it should similarly be expressed within the EA.
11.Clause 29(6), nor any other provision of the EA, otherwise limits or disentitles a member who has incremented while on higher duties to lose that higher increment. Save for clauses 56(13) (reduction following redeployment as part of the Workforce Adjustment Process), 67(1)(a) (reduction as a result of a Category 3 Conduct Issue), 67(1)(b) (reduction as a result of managing underperformance) & 67(3) (voluntary reduction) of the EA, there is no ability for the Commissioner (or his delegate) to reduce the classification of an employee under the EA. Once an increment point and/or band level is obtained, it is maintained save for the criteria being satisfied under one of the aforementioned clauses. While those performing higher duties are paid an allowance, the same logic applies with respect to construction of clause 29(6).
12.Other Allowances within the EA remove or alter entitlements should employees no longer meet the requirements or as the Commissioner sees fit. These are explicitly written within the EA, including clause 19 (Removal of Core Composite), clause 28(8) (conclusion of the Critical Event Composite), clause 34(3) (variation of the Remote Localities Allowance), and clause 35(3) (conditions on the Air Security Officer Flight Operations Allowance). Had the purpose of clause 29(6) purported to remove the entitlement, it would have been explicitly written.”
In its submissions in reply, the Union referenced notes made during bargaining (the Bargaining Minutes) which it said demonstrated the purpose of clause 29(6) and the intentions of the parties at the time of drafting the Agreement.
The submissions in reply also canvassed the principles applicable to the interpretation of enterprise agreements and contended that the AFP’s interpretation that the purpose of clause 29(6) being to modify the rate of payment of the HDA was narrow and failed to properly consider the purpose of increment advancement more broadly.
The case for the AFP
The AFP contended that the ordinary meaning of clause 29(6), when read in the context of the whole of clause 29 and having regard to the words of the clause, is that an employee must meet the circumstances in clause 29(6)(a) or (b) on each occasion on which the employee performs higher duties in order to be paid HDA at a higher increment point.
It made the following submissions as to the proper interpretation of clause 29(6):
“9.Clause 29(1) confers the entitlement to be paid a higher duties allowance where an employee meets the circumstances in 29(1)(a), (b) or (c), to be paid at a salary rate equal to the minimum increment point for the higher salary band.
10.On each occasion where an employee performs a period of higher duties, the starting point is clause 29(1).
11.The default position is that an employee who has met the qualifying period in clause 29(1)(a), (b) or (c) is entitled to be paid at the minimum increment point for the higher salary band.
12.Two clauses contemplate the modification of the default pay rate for a period of higher duties, clause 29(4) and clause 29(6).
13.Clause 29(4) provides the Commissioner with a discretion to authorise payment at a higher rate of allowance, thereby modifying the effect of clause 29(1).
14.Clause 29(6) operates to modify the effect of clause 29(1) and provides for a more beneficial rate of higher duties allowance than that provided in clause 29(1) where one of the conditions in clause 29(6) is met.
15.Clause 29(6) cannot be read in isolation and does not create a separate and stand-alone entitlement to higher duties allowance, rather, it operates to modify the rate of payment for higher duties allowance that would otherwise be payable to an employee under clause 29(1).
16.The structure of clause 29 and the reference to ‘the Employee's higher duties allowance’ in clause 29(6) contemplates the modification of something that is already in existence and that the employee is already receiving, being the higher duties allowance in clause 29(1).
17.Further, clause 29(6) applies in circumstances ‘where an employee has been temporarily undertaking duties at a higher level (a) for a continuous period of 12 months or (b) there has been temporary assignment of duties at a higher level for a total of 12 months in a 24 month period’. These circumstances are expressed as applying to the present moment in time, which indicates that the employee must be presently meeting the qualifying circumstances in (a) or (b) in order to receive the benefit conferred (being the modification of the default rate of allowance in clause 29(1)).”
In response to the Union’s submissions, the AFP said:
“18.The AFP's position in response to the AFPA's outline of submissions is that:
a. the AFPA's interpretation fails to read clause 29(6) in the context of the whole of the clause. The interpretation ignores clause 29(1), which confers the entitlement to higher duties and makes clear that the starting point for each period of higher duties is that an employee will be paid the minimum increment for each period of higher duties (if they meet one of the qualifying conditions in clause 29(1)(a), (b) or (c));
b. the AFPA's contention that words would need to be "read into" clause 29(6) and that the AFP EA would need to be substantially re-written to "disentitle" a member to advancement in further periods of higher duties is misconceived because it presupposes that clause 29(6) creates a separate and distinct ongoing entitlement (rather than modifying the specific and limited entitlement conferred in clause 29(1));
c. clause 29 is not intended to establish any permanent or ongoing entitlement. Clause 29 recognises that the performance of higher duties is temporary and provides an allowance not for developing skills and experience, but for performing duties at a higher level. Accordingly, clause 29(1) and 29(6) contain inbuilt limitations with respect to the circumstances in which the allowance is payable, and the circumstances in which it can be increased;
d. while enterprise agreements confer beneficial entitlements on employees, this does not mean the ordinary meaning of the words of the clause, when read in context, and as a whole, can be ignored; and
e. the provisions of the Better Practice Guide on Higher Duties do not assist in the interpretation of clause 29(6) in the AFP EA.
19.The Commission should also have regard to clause 9(3) of the AFP EA. This clause recognises that an employee will only be entitled to substantive promotion/advancement to a higher increment point for a salary band if they were performing higher duties "immediately prior to" their advancement and were in receipt of a higher increment point by operation of clause 29(6).”
Consideration
The principles applicable to the interpretation of enterprise agreements are well settled and do not need to be re-stated in any detail here. The starting point is to consider the ordinary meaning of the words, read as a whole and in context. Context may be found in the provisions of an agreement taken as a whole, or in their arrangement and place in the agreement. The language of an agreement must also be understood in light of its industrial context and purpose.
Having considered the submissions of the parties and applying the principles applicable to the interpretation of enterprise agreements, I find that the interpretation put by the AFP is the correct interpretation.
I accept that clause 29(6) does not confer an ongoing entitlement to HDA. Rather, when clause 29 is read as a whole, it is clear that an entitlement to HDA arises once the relevant qualifying periods are met. Each time a person performs higher duties, the starting point is clause 29(1), not 29(6), because it is clause 29(1) that confers an entitlement to HDA. Clause 29(6) in essence modifies the rate of the HDA where a person meets the conditions of clause 29(6)(a) or (b).
I agree with the AFP’s submission that clause 29 is not a clause which provides for incremental advancement, the provisions for which are contained elsewhere in the Agreement. In particular, clause 9(3) of the Agreement deals with promotion while receiving a HAD. This clause would not be necessary if clause 29(6) was intended to provide for substantive incremental advancement.
The tense used in clause 29(6) is also a relevant consideration and supports the AFP’s interpretation. Clause 29(6) applies where an employee has been temporarily “undertaking” duties at a higher level for a certain period of time. I accept this means the employee must be presently meeting the qualifying circumstances in (a) or (b) to receive the benefit the clause confers.
As a result, the answer to the question for determination is no. The dispute is so determined.
DEPUTY PRESIDENT
Appearances:
M Wardle for Police Federation of Australia.
P McNulty for Australian Federal Police.
Hearing details:
2023.
By telephone:
February 14.
[1] A second question was initially posed but the Union advised in its submissions, and confirmed during the hearing, that this was not pressed.
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