Police Federation of Australia v Victoria Police

[2021] FWC 181

[2021] FWC 181

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Police Federation of Australia
v
Victoria Police
(C2020/983)

State and Territory government administration
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 5 FEBRUARY 2021

Enterprise agreement – dispute about matters arising under the Victoria Police (Police Officers (excluding Commanders), Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2015 – whether jurisdiction exists to deal with dispute under superseded agreement.

[1] The Police Federation of Australia (Victorian Branch) (PFA) applied to the Fair Work Commission (the Commission) pursuant to section 739 of the Fair Work Act 2009 (Cth) (the Act) to deal with a dispute in accordance with the Dispute Resolution procedure in clause 10 of the Victoria Police (Police Officers (excluding Commanders), Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2015 1(2015 Agreement).

[2] Victoria Police/Chief Commissioner of Police (VicPol) is the Respondent to the Application.

[3] The present dispute concerns payment of a claim by an employee, Leading Senior Constable, Marnie Slevin (LSC Slevin), for meals, accommodation, travel and incidental expenses that the PFA says is provided for at clause 75 or alternatively clause 76 of the 2015 Agreement. LSC Slevin also claims that she is entitled to excess travel time pursuant to clauses 90 and 76.2 of the 2015 Agreement for travel performed whilst using a police car.

[4] LSC Slevin also claims she was entitled to payment for time worked and travel costs pursuant to clause 86-Carriage of Bulky Equipment in a private vehicle of the 2015 Agreement (for periods of travel performed in the employees own vehicle).

[5] VicPol submits that the Commission does not have jurisdiction to deal with the PFA’s application because the 2015 Agreement ceased to operate when the new Victorian Police (Police Officers, Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2019 2 (2019 Agreement) commenced from 1 April 2020.

[6] In the alternative VicPol submits that LSC Slevin is not entitled to any of the allowances claimed because she was not required by VicPol to stay overnight for the purposes of attending Phase 1 of the Diploma of Forensic Investigation Course (the Course) and as such is not entitled to any meals, accommodation, travel or incidental expenses pursuant to clause 75 or 76 of the 2015 Agreement. It is further submitted that the projected calculation of LSC Slevin’s travel time did not meet the minimum timeframes stipulated in clauses 90.1 (a) and 90.1(b) of the 2015 Agreement and as such there is no entitlement to excess travel in accordance with clauses 90 or 76.2.

[7] The dispute filed on 19 February 2020 was the subject of a number of proceedings before this Commission, however the matter remained unresolved. On 8 May 2020 PFA requested the matter proceed to hearing. A mention/directions hearing was held on 18 May 2020 and directions were issued. The matter was programmed to be heard on 1 July 2020. The parties filed materials and agreed to the matter being determined on the papers.

[8] This decision deals with the jurisdiction objection, specifically whether the Commission has the ability to determine the dispute by private arbitration.

Background

[9] The factual background to this matter is not contested. On or around 19 January 2020, LSC Slevin commenced work as a Crime Scene Officer (CSO) in the Melbourne Crime Scene Services (CSS). LSC Slevin travels from her usual place of residence to her usual place of work at Spencer Street, Docklands on a daily basis. 3

[10] The position of CSO is subject to the successful completion of a mandatory crime scene officer course (the CSO Course) within 12 months of obtaining the position. The Course LSC Slevin is required to complete comprises of two parts, the first is a four week residential course held at the Victoria Police Forensic Services Centre (VPFSC) at Macleod and 20 weeks of work-based training, the second being a two week residential training course at the VPFSC and 20 weeks of work-based training. 4

[11] On 1 January 2020, LSC Slevin emailed Detective Inspector Kelvin Gale confirming that she had secured a position on Phase 1 of the Course due to commence on 3 February 2020. In her email, LSC Slevin requested consideration and approval for the associated accommodation, travel, meals and incidental etc. expenses.

[12] On 2 January 2020, Detective Gale provided an email in response in which he approves LSC Slevin’s attendance at the CSO Course and states that “ND1 will cover all expenses”. 5

[13] On 10 January 2020, LSC Slevin submitted a North West Metro Region Travel Booking request. LSC Slevin was subsequently requested to prepare an Issue Cover Sheet (ICS) submitting her request for travel, meals, incidentals and accommodation for approval via the standard procedure to be followed by members making requests for payment of allowances. Ms Slevin submitted the required paperwork on 15 January 2020. 6

[14] LSC Slevin claimed approximately $3000 for accommodation, $2600 for meals and incidentals, as well as travel to and from the accommodation to her primary place of residence. In addition LSC Slevin claimed travel from the accommodation to the course and return. 7

[15] On 16 January 2020 a determination was made that LSC Slevin’s application should not be supported as she did not meet the criteria under clause 90.1 of the 2015 Agreement having regard to her projected travel time. LSC Slevin was provided with a number of alternative options which included:

(a) The provision of an unmarked Victoria Police vehicle travel from her residence to the VPFSC each day of the Course (which she was permitted to park on the street outside her residence);

(b) The provision of a marked or unmarked Victoria Police vehicle to travel to and from Macleod each day from the Geelong (or closer) police station to alleviate her need to park the vehicle at her home address (with LSC Slevin to make her own way to the police station to collect the vehicle); or

(c) Travelling to LSC Slevin’s normal workplace as per her usual routine, and then utilise a police vehicle to travel to and from Macleod. 8

[16] On 29 January 2020, The Police Association Victoria (TPAV) contacted Assistant Commissioner Luke Cornelius regarding the decision and foreshadowed raising a dispute under the 2015 Agreement. 9

[17] On 4 February 2020 VicPol provided an email response advising that LSC Slevin did not meet the provisions for excess travel under clause 90 of the 2015 Agreement as her calculated travel time from her place of work to the VPFSC was less than 45 minutes one way, and travel from her home residence to Macleod was less than 90 minutes one way. 10

[18] LSC Slevin paid for her own accommodation at a nearby hotel for five nights each week at a rate of around $790 per week because it became apparent that this cost was not going to be covered VicPol. LSC Slevin has not received any allowances or expenses in relation to attending the CSO Course 11

[19] On 17 February 2020, the PFA applied to the Commission to deal with the dispute in accordance with clause 10 of the 2015 Agreement. Two conciliation conferences were held. The first conference was held on 24 February 2020 and the second on 28 April 2020 however the matter remained unresolved.

[20] A mention/directions hearing was held before the Commission on 18 May 2020 and the matter was listed for hearing on 1 July 2020. The matter did not proceed to hearing as the parties agreed the matter could be determined on the papers.

Relevant Law and Agreement terms

[21] Section 595 of the Act empowers the Commission to deal with disputes if it is expressly authorised to do so under or in accordance with the Act. The Commission can deal with disputes in a number of ways, including by mediation or conciliation, making a recommendation or expressing an opinion. The Commission can only arbitrate a dispute with the express agreement of the parties to the dispute. 12

[22] Section 739 of the Act empowers the Commission to deal with certain disputes under an enterprise agreement procedure for dealing with disputes.

[23] The Agreement contains a procedure for dealing with disputes at clause 10:

“10. Dispute Resolution

10.1 For the purpose of this clause party includes the PFA.

10.2 With the exception of a matter contained in clause 11 or where a statutory right of review exists under the VP Act, if a dispute arises about any matter arising under this Agreement or the National Employment Standards (including s 65 of the FW Act) the parties to the dispute will attempt to resolve the dispute at the workplace level if appropriate.

10.3 A party may choose to be represented at any stage by a representative, including a union representative or Employer’s organisation.

10.4 If the matter is not settled or if it is inappropriate for the dispute to be discussed at the workplace level, the Employee(s) or their representative can request that the dispute be discussed with another Employer‐appointed representative for the purposes of this procedure.

10.5 If the dispute is not settled, the Employee(s) or their representative may apply to the Fair Work Commission to have the dispute dealt with by conciliation.

10.6 If the matter cannot be resolved by conciliation under sub-clause 10.5, either party may request that the Fair Work Commission deal with dispute by arbitration. However, nothing in this clause prevents the parties from applying to the Fair Work Commission for, and the Fair Work Commission granting, interim relief, before the steps set out in this clause are exhausted.

10.7 The parties to the dispute and their representatives must act in good faith in relation to the dispute.

10.8 While a dispute is being resolved, work must continue according to usual practice, provided that this does not apply to an employee who has a reasonable concern about an imminent risk to his or her health or safety and has advised the employer of this concern. The employer may direct an employee to perform different work or work at a different location, on full pay, if it is reasonable to do so to protect the safety, health or welfare of employees.

10.9 Any determination/decision including any interim determination/decision of the Fair Work Commission is binding upon the parties to the dispute and the parties agree to be bound by that determination/decision.

10.10 Any determination/decision including any interim determination/decision will be implemented.

10.11 An appeal lies to a Full Bench of the Fair Work Commission, with the permission of the Full Bench, against a determination/decision of a single member of the Fair Work Commission made pursuant to this clause. A dispute is not resolved until any appeal has been determined.”

[24] LSC Slevin complied with clause 10 of the 2015 Agreement in raising her dispute. The dispute primarily relates to the proper interpretation of clauses 75 and 76 of the 2015 Agreement which provides for the payment of meals, accommodation, travel and incidental expenses in schedule C of the 2015 Agreement. However, VicPol submits the Commission has no jurisdiction to determine the dispute via private arbitration because the 2015 Agreement has ceased to operate.

[25] Before I proceed to determine LSC Slevin’s application I must first deal with the jurisdictional objection.

Submissions of the parties

[26] VicPol submits the basis for the objection is the Commission no longer has the power to determine or arbitrate a dispute that is the subject of the PFA’s present application, because the Commission’s arbitral power was contained in clause 10 of the 2015 Agreement, which ceased to operate when it was replaced by the 2019 Agreement from 1 April 2020.

[27] VicPol submits the PFA’s request for the Commission to arbitrate the dispute was made on 8 May 2020, after the 2019 Agreement commenced operation.

[28] Vic Pol rely on a number of authorities in support of its objection. VicPol relies on the decision of The Australian Worker’ Union v Costa Exchange Pty Ltd T/A Costa (Berry Category) 13 (Costa Exchange), in that in circumstances where, in between the filing of a request for arbitration the relevant enterprise agreement ceased to operate and was replaced by a new agreement, there is no ongoing power of private arbitration available to the Commission.14 VicPol submit Costa Exchange stands for the proposition that the Commission no longer has any jurisdiction to resolve a dispute arising under an old agreement in accordance with that dispute settlement term.

[29] In Costa Exchange, an application was made to the Commission to deal with a dispute in accordance with the dispute settlement procedure in the Costa (Berry Category) Enterprise Agreement 2015-2019 in February 2019. After unsuccessful attempts were made to conciliate the dispute, an arbitration hearing was scheduled for July 2019, however the hearing was vacated at the request of the parties whilst the new 2019 Agreement was negotiated and subsequently submitted for approval. In February 2020, the Applicant confirmed its intention to reactivate the dispute and proceed to arbitration. It was argued by Costa Exchange that the Commission no longer had power to determine the dispute as the Commission’s power was obtained via the dispute settlement provision in the old 2015 Agreement which had since been replaced.

[30] Commissioner Cambridge considered the relevant authorities and held that there was no ongoing power of private arbitration available to the Commission even though the dispute application and initial request for arbitration were made whilst the old agreement was still in operation. In arriving at this position, the Commissioner had regard to the decision in Robert Battye v John Holland Pty Ltd (JHPL) t/as Territoria Civil 15 (Battye), in which the proposition identified by the Full Bench was that when an enterprise agreement ceases to operate it does not apply to anyone and so does not impose any obligation or confer any entitlement.16

[31] PFA submits the facts in Costa Exchange can be distinguished from the present matter. They submit in Costa Exchange the dispute was initially lodged on 1 February 2019 and then vacated and adjourned until 1 May 2019 before a further request was made for the dispute to be placed on “pause” on 27 June 2019, and further requested to be stood over on 8 January 2020. Meanwhile a new agreement had been approved on 13 December 2019. The single member decision found that there was no ongoing power of private arbitration in circumstances where “in the period between when the application was filed and the subsequent reactivation of a request for arbitration the 2015 EA had ceased to operate when it was replaced by the 2019 EA.” 17

[32] PFA submits whereas the dispute in Costa Exchange was adjourned, vacated, paused, and stood over on four separate occasions for well over a year, no such adjournments were requested in the current dispute. It submits of significance is there was no request to “reactivate” the present dispute following the approval of a subsequent agreement. 18

[33] PFA further submits that VicPol is incorrect on the point that the first request to arbitrate the dispute was made on 8 May 2020. It submits the PFA’s first request to arbitrate the dispute is evident on the originating Form F10 filed on 19 February 2020 in which the PFA sought ‘resolution of the dispute through conciliation and arbitration.” 19

[34] PFA submits similarly in the decision of Battye, inordinate delays characterised that dispute. In Battye, the applicant first lodged a dispute on 27 July 2017 and Mr Battye was asked by the Commission to advise whether he wished to proceed to arbitration in August 2017. Some 16 months later, on 20 December 2018, the applicant asked the Commission to “re-list” the matter. Meanwhile a new agreement had been made on 16 May 2018. 20

[35] PFA submits in the decision of Costa Exchange Cambridge C observed that “it would appear that the Battye Decision may leave open the prospect that in particular circumstances private arbitration powers which were commenced properly under a DSP [dispute settlement clause] contained in an enterprise agreement that was in operation, may be continued and determined notwithstanding that the enterprise agreement subsequently ceased to operate.” 21

[36] PFA sought to distinguish Battye from the present application noting there is no 16 month gap in which a clear bifurcation between conciliation and arbitration is evident in this application. 22

[37] PFA submits they sought to enliven the Commission’s arbitration powers at the time the application was lodged which was well before the 2019 Agreement was made. PFA says since then, the parties have merely been engaged in continuous conciliation and arbitration process at the Commission. 23

[38] Regard was also had to the binding authority of the Full Bench of the Australian Industrial Relations Commission in Stephenson v Abetz 24 (Stephenson) and the proposition that when an industrial instrument ceases to operate, any dispute settlement provision contained in the instrument which provided the Commission with private arbitration powers also ceases, thereby extinguishing the private arbitration powers that had been conferred by that dispute settlement provision.25

[39] PFA submits the decision in Stephenson was arrived at based on the following facts:

•  The Member of Parliament Staff (Commonwealth) Certified Agreement 2003 (subsequent agreement) applied to the complete exclusion of the Members of Parliament Staff (Commonwealth) 2001-2002 (the preceding Agreement) (clause 6.3)

•  The subsequent Agreement expressly replaced the preceding Agreement (clause 6.4)

•  There was no equivalent or corresponding clause in the subsequent agreement for the disputed clause in the preceding agreement (clause 28.3(b)). 26

[40] PFA submits the purported authority of Stephenson is not relevant because none of the elements outlined above are present in the current dispute. Further, in the present dispute each of the disputed clauses has an equivalent clause in the subsequent agreement. 27

[41] PFA submits the correctness in Stephenson is doubted in the single member decisions of VP Lawler in Grabovsky v United Protestant Association of NSW Ltd T/A UPA 28 (Grabovsky) and Pulle v Commonwealth of Australia acting through the Secretary of the Department of Parliamentary Service29 (Pulle). In Pulle VP Lawler found that the Commission could make an order in relation to expired agreements as the dispute before it was current.30

[42] PFA submits VicPol mischaracterises the present dispute and that the dispute is ongoing and the question remains unresolved.

Consideration

[43] The Commission’s powers to deal with disputes under an enterprise agreement are drawn from sections 595 and 739 of the Act and the relevant dispute resolution clause in the Agreement. Section 595 provides that the Commission may deal with a dispute “only” if it is “expressly authorised to do so under or in accordance with another provision of (the) Act”. Section 739 of the Act makes clear that the Commission’s function in dealing with a dispute referred to it under an enterprise agreement is dependent on the terms of that agreement.

[44] Section 739(3) provides that, in dealing with a dispute under a term in an enterprise agreement, the Commission “must not exercise any powers limited by the term”. Section 739(4) states that if, in accordance with a term in an enterprise agreement, the parties have agreed that the Commission may arbitrate a dispute, the Commission may do so. Section 739(5) states that the Commission “must not make a decision that is inconsistent with” (relevantly) an enterprise agreement, or with the Act.

[45] It is well accepted that parties to an agreement may structure or limit the role of the Commission and s.739 makes clear that the Commission’s function in dealing with a dispute referred to it under an enterprise agreement depends on the terms of the agreement. The Commission has no general discretion under the Act to deal with disputes even if it is impossible for a party to comply with the dispute resolution clause. 31

[46] On 19 February 2020, PFA made the present application requesting the Commission deal with a dispute in accordance with the dispute resolution procedure set out in clause 10 of the 2015 Agreement. On 24 February 2020 and 28 April 2020 the parties participated in conciliation before the Commission but were unable to resolve the dispute.

[47] On 28 April 2020 correspondence was sent from the Commission to the parties directing they confer on the matters that PFA submitted could be resolved. The parties were required to advise the Commission by 8 May 2020 if the matter remained unresolved.

[48] On 29 April 2020 PFA sent correspondence to VicPol seeking to resolve the travel component of the dispute in an attempt to narrow the issues in dispute.

[49] On 1 May 2020 VicPol replied outlining the basis on which they were prepared to settle the dispute however the matter remained unresolved.

[50] By email on 8 May 2020 PFA filed proposed directions requesting the dispute be arbitrated.

[51] VicPol submit the 2015 Agreement has been replaced by the 2019 Agreement therefore the Commission no longer has jurisdiction to determine a dispute that had been referred to it under the 2015 Agreement.

[52] Section 52 of the Act defines when an enterprise agreement applies to an employer, employee or employee organisation. Section 52 provides that an agreement can only apply to an employee, employer or employee organisation when it is in operation.

[53] Section 53 of the Act sets out when an enterprise agreement covers an employer, employee or employee organisation. Section 58 provides that only one enterprise agreement can apply to an employee at a particular time.

[54] Section 54 of the Act explains when an enterprise agreement is in operation. On 25 March 2020 Commissioner Lee approved the 2019 Agreement which commenced operation on 1 April 2020. After the 2019 Agreement was approved by this Commission the 2015 Agreement ceased to operate and no longer applied to anyone.

[55] The PFA submits that a dispute that has been bought before the Commission can proceed to arbitration after an agreement has ceased to operate. The PFA’s submission implies that an agreement would continue to confer rights and obligations even though the agreement has ceased to operate. The rights and obligations conferred by an enterprise agreement can only apply to a person when it is in operation.

[56] Section 51 of the Act sets out the significance of an enterprise agreement applying to a person and provides that an agreement is enforceable only if applicable. Section 51 provides that an enterprise agreement does not impose obligations on a person, and a person does not contravene a term of an enterprise agreement, unless the agreement applies to a person. Section 51(2) provides that an enterprise agreement does not give a person an entitlement unless the agreement applies to the person.

[57] Under s.739 the Commission may arbitrate in accordance with a term of an agreement that allows the Commission to deal with a dispute. Clause 10 of the 2015 Agreement in this case was the relevant term. The 2015 Agreement had ceased to operate from the time the 2019 Agreement came into operation on 1 April 2020, therefore the rights and obligations it confers can no longer continue to be imposed. An enterprise agreement that has ceased to operate under s.54 no longer has effect in relation to the resolution of disputes under Part 6-2 of the Act and any continued operation as sought by the PFA would be inconsistent with s.51 of the Act.

[58] Further section 58(1) states that only one enterprise agreement can apply to an employee at a particular time. The 2019 Agreement is the agreement currently in operation and it is the agreement that applied to LSC Slevin from 1 April 2020. The 2015 Agreement became inoperative and no longer applied to LSC Slevin when replaced by the 2019 Agreement. The 2015 Agreement no longer applied to LSC Slevin at the time the time the parties were issued with directions for the filing of submissions in these proceedings.

[59] In support of its jurisdictional objection VicPol rely on the decision in Battye. The PFA argue that the decision in Battye is distinguishable from the present application because the PFA in its application to the Commission sought resolution of the dispute through conciliation or arbitration. Whilst this is a factual distinction, I do not agree with the PFA submission that the decision in Battye goes so far as to suggest that the Commission would necessarily have power to determine the dispute if Mr Battye had sought to have his matter arbitrated at a time when the agreement was still in operation. The Full Bench in Battye stated:

“[23] It is clear that at the time Mr Battye first sought to enliven the Commission’s power to arbitrate under the 2013 Agreement, that agreement had ceased to apply to John Holland and to him. The relevant effect of s.58 of the Act is that, once the 2017 Agreement came into operation on 16 May 2018, the 2013 Agreement ceased to apply to any employee within its coverage, because the coverage of the two agreements was the same. Under s.54(2), the 2013 Agreement then ceased to operate, and that meant that under s.52(1) it could no longer apply to anyone. If an agreement does not apply to anyone, it cannot impose any obligation or confer any entitlement (s.51). Section 739(4) provides that the Commission may arbitrate a dispute only where the parties have agreed that the Commission may do so in accordance with a disputes resolution term in an agreement. Here, the relevant term in the 2013 Agreement no longer applied to Mr Battye and John Holland at the time Mr Battye first sought to invoke the arbitration power in that term.

[24] It seems to us that in these circumstances the Commissioner plainly reached the right conclusion and there is no warrant for the grant of permission to appeal. Accordingly, we refuse permission to appeal.”

[60] The Full Bench in Battye simply restates the factual nature of Mr Battye’s case before stating that an agreement that has ceased to operate can no longer impose any obligations or confer any entitlements on anyone.

[61] The PFA also relies on the single member decisions in Grabovsky and Pulle submitting that an “accrued right” survives the cessation of operation of the 2015 Agreement and that the decision reached in Stephenson, which had reached a contrary conclusion in respect of similar circumstances, was not relevant. The PFA did not identify any provision within the Act in support of its submission

[62] The Commissions can only exercise its power to arbitrate a dispute in accordance with a term in an enterprise agreement that is in operation. Neither the 2015 Agreement nor the Act provides for an “accrued right”. The Act does not provide that a person can continue to exercise his or her rights under a dispute settlement procedure after the agreement has ceased to operate. The fact that the 2015 Agreement has ceased to operate means those rights no longer exist.

[63] It follows and I find that the Commission has no present jurisdiction to deal with a dispute under a disputes procedure in an agreement that is no longer in operation. The application is therefore dismissed

COMMISSIONER

Written submissions:

Applicant: 1 June 2020
Respondent: 15 June 2020
Applicant Reply: 22 June 2020

Printed by authority of the Commonwealth Government Printer

<AE418283  PR726177>

 1   AE418283

 2   AE507544

 3   Applicant Submissions at [9] and Respondent Submissions at [2.1]

 4   Ibid at [11] and ibid at [2.2]

 5   Witness statement of LSC Slevin, Annexure MS2

 6   Ibid at [7] and Respondent Submissions at [2.9]

 7   Respondent Submissions at [2.9]

 8   Ibid at [2.10]

 9   Ibid at [2.11]

 10   Ibid at [2.12]

 11   Applicant Submissions at [12]

 12  CC Pty Ltd T/A Cook Colliery v Construction, Forestry, Mining and Energy Union[2017] FWCFB 2749

 13   [2020] FWC 2418

 14   Respondent Submissions at [3.3]

 15   [2019] FWCFB 8678

 16   Ibid at [23]

 17   Applicant Submissions in Reply at [4] – [5] and [2020] FWC 2418 at [54]

 18   Applicant Submissions in Reply at [6]

 19   Ibid at [7] - [8]

 20   Ibid at [9]

 21   Ibid at [12] and [2020] FWC 2418 at [42]

 22   Ibid at [13]

 23   Applicant Submissions in Reply at [13]

 24   [PR952743] (28 October 2004)

 25   Respondent Submissions at [3.6]

 26   Applicant Submissions in Reply at [15] and [PR952743] (28 October 2004) at [49] - [54]

 27   Applicant Submissions in Reply at [16]

 28   [2015] FWC 2504 at [53] - [54]

 29   [2011] FWA 7462 at [41]

 30   Ibid at [38] and Applicant Submissions in Reply at [17] - [19]

 31   [2017] FWCFB 5032 at [24] - [25]