Police Federation of Australia v Victoria Police
[2011] FWA 2523
•29 APRIL 2011
[2011] FWA 2523 |
|
DECISION |
Workplace Relations Act 1996
s.709—Application to Commission to have a dispute resolution process conducted (Div 5)
Police Federation of Australia
v
Victoria Police
(DR2010/560)
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 10—Application to vary transitional instrument to remove ambiguity
Chief Commissioner of Police
(AG2010/19770)
VICTORIA POLICE WORKPLACE AGREEMENT 2007
State and Territory government administration | |
COMMISSIONER SMITH | MELBOURNE, 29 APRIL 2011 |
Dispute concerning payment of travel costs as prescribed by clause 13.4 of the agreement.
INTRODUCTION
[1] There are two applications to which this decision relates.
[2] The first is an application by the Police Federation of Australia (PFA) to resolve a dispute about the proper application of Clause 13.4—Excess travel time, contained in the Victoria Police Workplace Agreement 2007 [AC310497] (the Agreement). The application is made pursuant to s.709 of the Workplace Relations Act 1996 1 (the WR Act). The dispute is about how the Agreement should be applied as a controversy has arisen over the entitlement of Constable N Kinna under the clause.
[3] The second application is made by the Chief Commissioner of Police (VicPol), pursuant to item 10 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCAA) to remove an ambiguity or uncertainty. This application relates to meaning of clause 13.4 Excess travel time.
[4] It will be immediately apparent that there is a controversy over what the provisions in relation to excess travelling time mean, or should mean. The facts and circumstances surrounding an excess travelling claim made by Constable Kinna bring into sharp focus some of the differences.
LEGISLATIVE FRAMEWORK
[5] It is appropriate to examine the legislative framework under which each application is made. As to the first application, the WR Act provided that agreements made must contain a dispute settlement procedure (s.353) and where that procedure existed then s.709 relevantly provides:
709(1) A person may apply to the Commission to have a dispute resolution process conducted by the Commission under this Division in relation to a matter or matters in dispute if:
(a) the dispute is one that, under the terms of a workplace agreement, may be resolved using a dispute resolution process conducted by the Commission; and
(b) any steps that, under the terms of agreement, must be taken before the matter is referred to the Commission have been taken.
[6] The dispute settlement procedure contained in the Agreement is as follows:
19.5 Arbitration
19.5.1 If the dispute or grievance has not been settled when conciliation has been completed, the Employee or their representative may request that the AIRC proceed to determine the dispute or grievance by arbitration.
19.5.2 Where a member of the AIRC has exercised conciliation powers in relation to the dispute or grievance, the member shall not exercise or take part in the exercise of, arbitration powers in relation to the dispute or grievance if a party objects to the member doing so.
19.5.3 Subject to clause 19.5.5 below, the determination/decision including any interim determination of AIRC is binding upon the parties to it.
19.5.4 Subject to clause 19.5.5 below, any determination/decision will be implemented.
19.5.5 An appeal lies to a Full Bench of the AIRC, with the leave of the Full Bench, against a determination/decision of a single member of the AIRC made pursuant to this clause.
[7] It can be seen that the Agreement authorises arbitration in the event that conciliation fails. Notwithstanding the efforts of all concerned conciliation failed to bring about a resolution of the matter and it was necessary to proceed to arbitration. There is no issue between the parties on the power available to Fair Work Australia (FWA) to determine the proper operation of the Agreement.
[8] The second matter is brought pursuant to item 10 of Schedule 3 of the TPCAA which provides:
10 All kinds of transitional instrument: variation to remove ambiguities etc.
(1) On application by a person covered by a transitional instrument, FWA may make a determination varying the instrument:
(a) to remove an ambiguity or uncertainty in the instrument; or
(b) to resolve an uncertainty or difficulty relating to the interaction between the instrument and a modern award; or
(c) to remove terms that are inconsistent with Part 3-1 of the FW Act (which deals with general protections), or to vary terms to make them consistent with that Part.
Note: For variation of a transitional instrument to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards, see item 26.
(2) A variation of a transitional instrument operates from the day specified in the determination, which may be a day before the determination is made.
[9] The application seeks to remove an ambiguity or uncertainty in the Agreement. There is again no issue between the parties as to power in relation to this aspect of the application.
[10] Given the nature of the controversy between the parties it is appropriate that I firstly determine whether or not ambiguity or uncertainty arises in the Agreement and then apply the result of that consideration to determine how the circumstances relating to Constable Kinna should be resolved.
THE FACTS SURROUNDING THIS CASE
[11] Constable Kinna graduated from the Victorian Police Academy on 5 March 2010 and was placed at Ballarat. On arrival she was advised that she had been booked into the standard operational car course from 24 May 2010 until 4 June 2010. It is standard practice for newly appointed police officers to undertake this course. The course is held in Brunswick.
[12] Constable Kinna made contact with the relevant person and requested accommodation for the period of the course. Subsequently Constable Kinna advised that she would not require accommodation as her family responsibilities were such that she thought it better to be home at night. This would require her to commute on a daily basis. The reason for her commuting on a daily basis at that time was not in issue and understood by all concerned.
[13] It was the evidence of Constable Kinna that she sought to discuss the matter of her attendance at the course with the Inspector at Ballarat but, for one reason or another, was not able to make contact. It was also the evidence of Constable Kinna that at Senior Sergeant level at Ballarat it was known that she was going to the course and had decided to commute and do so in her own car.
[14] Constable Kinna returned from the course and submitted a claim for excess travel costs based upon the appropriate kilometre rate in Schedule C of the Agreement.
[15] VicPol was of the view that before Constable Kinna used her own vehicle she should have had permission to do so, as this was going to be a significant cost to the cost centre where she was employed. VicPol was of the view that it was not open to a member to simply decide to use their own car without approval. As a consequence, the claim made by Constable Kinna for a kilometre allowance was refused. It submitted that had it known all of the circumstances it may have deferred the course until Constable Kinna was better able to stay in Melbourne for the duration of the course, or it may have provided a vehicle for her to travel to and from Melbourne.
[16] There was a great deal more material provided but the essential facts are as stated. It is also appropriate for me to record that I do not believe that Constable Kinna set out to deliberately deceive. There is an area where misunderstandings may have arisen. This is particularly so when consideration is given to the views of the parties as to the proper application of the clause in the Agreement.
THE TERMS OF THE AGREEMENT
[17] Clause 13.4.2(d) of the Agreement is the focus of the matter before me and it provides:
(d) Excess Travel Costs
(i) The Employee will be entitled to utilise the most convenient form of transport appropriate to the Employee’s circumstances for travelling from the Employee’s home to the temporary work location or training venue.
(ii) All costs in relation to Excess Travel incurred by an Employee will be reimbursed:
(A) Where there is a direct rail/bus service available which is reasonable for the Employee to use, the equivalent of a first class rail fare or, if authorised to use their private motor vehicle, the appropriate kilometre rates in accordance with Schedule C; or
(B) Where there is no direct rail/bus service available the appropriate kilometre rates in accordance with Schedule C.
(iii) If an Employee is authorised to use a departmental vehicle they are not entitled to a mileage claim.
[18] In the circumstances of this case, the argument is reasonably straight forward. VicPol submit that clause 13.4.2(d)(ii)(A) applies in that there is a direct service which could be supplemented by a taxi and that in those circumstances authorisation is necessary before an employee can use their private motor vehicle.
[19] The PFA submit clause 13.4.2 (d)(ii)(B) applies in that there was no direct rail or bus service available and that the appropriate kilometre rates will apply. It submits that authorisation is only necessary in circumstances where there is a direct service.
[20] For Constable Kinna to attend the course in Brunswick it would have been necessary for her to travel by train to Southern Cross Station and then to take another train to Brunswick. In passing I note that the evidence was that it would have been difficult to arrive at the course in time if the two trains were the mode of transport used.
[21] The controversy arises as to what is meant by a direct rail/bus service and it is to that matter that I now turn.
AMBIGUITY OR UNCERTAINTY?
[22] It is well settled that before jurisdiction exists to vary an agreement it must be found that there is ambiguity or uncertainty. In addition, in Re: Tenix Defence Systems Pty Limited Certified Agreement 2001-2004, a Full Bench of the Commission stated:
“The Commission will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and an arguable case is made out for more than one contention.” 2
[23] It is also true that when seeking to construe industrial instruments the first rule is to look at the words but this is not done in isolation from its context and setting. 3 Relevantly Mason J in Codelfa Construction v State Rail Authority of NSW4 concluded that in seeking to give meaning to an agreement it is not the subjective intentions of the parties, but rather what is the presumed mutual intention of the parties following an objective review of the circumstances surrounding the making of the agreement.
[24] It is against that background that I now review the evidence and submissions to determine whether or not an ambiguity or uncertainty exists.
[25] In this matter there is some history.
[26] In November 2000, Commissioner Holmes [as he then was] considered an application for excess travel expenses. At time the Commissioner did not make a decision in relation to travel costs where there was no access to public transport but he did observe that there should be some form of compensation for the use of an officer’s own transport. 5 It is said by the PFA that this led to negotiations for the 2001 Agreement which contained the following:
5.3.4.4 Excess Travel Costs
5.3.4.4.a The member shall be entitled to utilise the most convenient form of transport appropriate to the member’s circumstances for travelling from the member’s home to the temporary work location or training venue.
5.3.4.4.b All costs in relation to excess travel incurred by a member shall be reimbursed by the equivalent of a first class rail fare or if authorised to use their private motor vehicle the appropriate kilometre rate in accordance with clause 5.3.1.1
[27] There were still disputes about the application of this clause which then led to further negotiations and the clause which currently appears in the Agreement was settled upon. Mr C Kennedy was called to give evidence as to how the PFA saw the clause operating. Mr Kennedy’s experience has been over a long period of time. This included being the advocate in the matter before Holmes C and also being part of the subsequent negotiations leading to the current clause.
[28] It was the evidence of the Mr Kennedy that the objective of the clause was that it would be self executing. That is; if an employee was given approval to attend an event which attracted the operation of the excess travel costs clause and that there was no direct rail or bus route, then the employee would be entitled to use their private vehicle. Mr Kennedy gave as an example the attendance at the Glen Waverly training college where a person may have to use a train, tram and bus. These were circumstances the agreement was designed to overcome.
[29] VicPol was of the view that the clause should be applied as providing an obligation on it to compensate employees who were expected to travel from a place where there is no convenient transport service available. Mr Kennedy’s evidence was that the use of the word convenient was contained in the 2001 agreement but removed in the 2007 agreement as it was not sufficiently clear.
[30] The PFA submitted that if the plain meaning of the word direct was ‘from one place to other that’s not circuitous’ 6 and if the rail or bus transport did not achieve this objective, then there was an automatic approval to use a private motor vehicle. It was emphasised that the word “direct” implied a single journey experience.
[31] VicPol said that it had, in the process of seeking to resolve the dispute, advised that it was prepared to consider providing a taxi service from the point where the employee disembarks the single journey to the temporary work location or training venue.
[32] In my view, the evidence in this matter divulges an uncertainty as to the proper application of the Agreement. There is uncertainty between the parties as to what the term direct means and what follows from that. On the one hand the PFA argue for a point to point meaning or nothing less than a single journey on the relevant transport. VicPol don’t necessarily disagree (there are some qualifications) with the single journey on the relevant transport 7 but argue that it could provide other convenient means of transport to the temporary work location or training venue.
[33] Having determined there is an uncertainty the question then is: should the discretion be exercised to resolve the uncertainty and if so, how should that be done? In my view this is a serious matter which has a long history and uncertainty still exists so I have decided to exercise my discretion to resolve the uncertainty. I do so in the knowledge that there is currently bargaining taking place between the parties and should the resolution of the matter not accord with the objectives of any of the parties, they are free to bargain for a different outcome.
REMOVAL OF THE UNCERTAINTY
[34] From the submissions and evidence of the parties, it appears clear that there are a number of principles which they have agreed upon or discussed since at least 2000. The first is that where an employee can travel to the temporary work location or training venue by a single mode of rail or bus transport that should occur unless they are authorised to use their private motor vehicle. The second matter which appears to be uppermost in the mind of the PFA is that the onus should not be on the employee to seek authorisation where there is not a direct rail or bus service to the temporary work location or training venue in addition to being sent to the temporary work location or training venue. Finally, VicPol would like the opportunity to provide an alternative to an employee using their private motor vehicle. This last point is touched upon in clause 13.4.2(d)(iii) of the agreement where an employee can be authorised to use a departmental vehicle and then they are not entitled to make a claim.
[35] Against that background I propose to vary the Agreement to provide:
(d) Excess Travel Costs
(i) The Employee will be entitled to utilise the most convenient form of transport appropriate to the Employee’s circumstances for travelling from the Employee’s home to the temporary work location or training venue.
(ii) All costs in relation to Excess Travel incurred by an Employee will be reimbursed:
(A) Where there is a direct rail/bus service available which is reasonable for the Employee to use, the equivalent of a first class rail fare or, if authorised to use their private motor vehicle, the appropriate kilometre rates in accordance with Schedule C; or
(B) Where there is no direct rail/bus service available the appropriate kilometre rates in accordance with Schedule C.
(iii) Where an Employee attends a temporary work location or training venue and the Employer has not authorised to use a departmental vehicle (self drive or otherwise) or provided a taxi voucher from the end point of the single journey to the temporary work location or training venue then clause 13.4.2(d)(ii)(B) will apply.
[36] So that my intention is clear, the removal of the uncertainty is designed to highlight the fact that direct rail or bus service refers to a single mode of transport. It cannot mean that the circumstances described by Mr Kennedy is his evidence where a person might have to catch a train, tram and/or a bus. In my view this approach represented the objective mutual intention of the parties. The second aspect of the decision is to ensure that an employee does not have to obtain permission to use their own vehicle if there is no direct rail or bus service and the employer has not made any arrangements to ensure that the employee does not have to catch more than the single journey direct rail or bus service. Again, as a part of the employer’s responsibility in asking an employee to attend a temporary work location or training venue it must take the responsibility for ensuring that no more than a single rail or bus service journey is undertaken. The provision does not involve the employee having to take responsibility for seeking permission for a particular form of travel in circumstances where the employer has approved the travel to a temporary work location or training venue. In this sense it also captures another aspect of what I believe was the mutual objective intention of the parties and that was to have a self executing clause in circumstances where the employer had decided a course of action.
[37] I intend to vary the Agreement from today given the obligations on the employer which have now been made clear. To fix an earlier operative date may have the potential to create further dispute. However, before signing the order I shall list the matter for settlement so that either party can speak to the terms of an order. The matter will be listed for 2:15 pm on Friday 6 May 2011.
[38] Against the background of the decision I have made to remove the uncertainty, it is now appropriate to move to determine the proper application of the agreement in relation to the circumstances facing Constable Kinna.
THE OUTCOME FOR CONSTABLE KINNA
[39] In determining the outcome for Constable Kinna I have had regard to the following factors:
• Constable Kinna was not seeking to deceive so that she could use her private vehicle.
• The need for Constable Kinna to travel to and from the training venue on a daily basis, which was related to her family responsibilities at that time, is accepted.
• There was more than one single journey required on either a rail or bus service.
• The course attended by Constable Kinna was both routine and necessary.
[40] Notwithstanding that there was some uncertainty, for which I do not criticise any person; I determine that consistent with the Agreement, as now read, Constable Kinna should be paid the appropriate kilometre rate in accordance with Schedule C.
COMMISSIONER
Appearances:
N Baldini for the Police Federation of Australia.
L Cheligoy on behalf of the Chief Commissioner of Police.
Hearing details:
2011.
Melbourne:
February, 1.
1 As amended by the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008.
2 PR917548
3 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 69
4 (1982) 149 CLR 337
5 Print T3586 at paragraph 62
6 Transcript PN267
7 Attachment C to the submissions of VicPol.
Printed by authority of the Commonwealth Government Printer
<Price code C, AC310497 PR508774>
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