Police Federation of Australia v Victoria Police
[2014] FWC 3737
•6 JUNE 2014
[2014] FWC 3737 |
FAIR WORK COMMISSION |
EX TEMPORE DECISION |
Workplace Relations Act 1996
s.170LW—pre-reform Act—Application for settlement of dispute (certified agreement)
Police Federation of Australia
v
Victoria Police
(C2014/831)
VICTORIA POLICE FORCE ENTERPRISE AGREEMENT 2011
(ODN AG2011/12253) [AE889678]
State and Territory government administration | |
DEPUTY PRESIDENT SMITH | MELBOURNE, 6 JUNE 2014 |
Alleged dispute concerning the type of accommodation provided by the employer to members.
[1] The following decision, now edited, was issued during proceedings conducted on 4 June 2014.
[2] Given the urgency in which this decision is needed I am going to do my best now to give you an ex-tempore decision and I shall subsequently publish this and I reserve the right to alter it to ensure elegance of language or to further explain any of the issues upon which I am now going to make a decision. I will not go into the usual recitals, but simply go to the conclusions that I have reached in this matter.
[3] I have examined clauses 71, 71.5 and 71.6 of the Victoria Police Force Enterprise Agreement 2011 (the Agreement). I am satisfied that clause 71 does not create an entitlement to accommodation, it creates an entitlement to allowances, and 71.5 creates an entitlement to certain allowances in certain circumstances. Therefore I can now turn to clause 71.6. It reads:
Where an employee is required to share accommodation or facilities, with the exception of the Victoria Police Academy, they will be paid an inadequate accommodation allowance as prescribed by Schedule C.
[4] If one looks at the relationship between clauses 71.5(a), which describes “adequate”, and 71.6 which uses the term “inadequate”, it is seen that these two are linked. Accordingly, it is appropriate to examine the history and context of what 71.5(a) seeks to address. Adequate accommodation in clause 71.5 is referred to and then in brackets (ie: of at least 3 star single motel room standard). I am asked by Victoria Police to focus on the word “adequate’ rather than those words in brackets, and simply translate the words “3 star single room motel standard”, and conclude that the provision of accommodation is adequate given that they say it is better than three star single room motel standard.
[5] I am not persuaded to take this course. I examined the history of the matter and it is clear from the history of the matter, and in this connection I turn to the letter of Acting Commander Peter Bull written on 11 February 2003, which addresses motel accommodation. The second paragraph states:
Victoria Police restates its position on motel accommodation that where members are required to travel away overnight, they will use contracted motel accommodation wherever possible and that all accommodation shall be of a good commercial standard of at least 3 star and provides for single room occupancy with private facilities.
[6] The letter uses the word “and” between reference to 3 star accommodation and single room occupancy.
[7] Given the context of that letter and the history of the dispute which gave rise to the provisions under the Agreement, I do not see the use of the phrase in brackets as being a general standard of which one must determine whether it is adequate or not. It must be read consistent with its history. In my view, accommodation must be of at least 3 star and have single room occupancy with private facilities. This then means that one looks at clause 71.6 and seeks to see whether or not the accommodation that is sought to be provided for the snow season at Mount Buller is adequate. It is not single room accommodation and therefore, in my view, it fails the test of adequacy. I am not persuaded that it is not of three star, but I do hold the view that because it does not provide for single room occupancy with private facilities, then it is inadequate accommodation in terms of the agreement of the parties.
[8] I now turn to the occupational health and safety matters. I am asked to examine these in two ways. The first by Victoria Police (VicPol) where I am asked to examine them in the way which it looks at the broader concerns of occupational health and safety: namely the adequacy of the accommodation, the cleanliness of the accommodation, other matters which go to the physical location and capacity of the accommodation. In relation to the evidence from the Police Federation of Australia (PFA), I am asked to examine issues going to fatigue, personal habits, preferences and attitudes of persons with whom they may be required to share.
[9] In relation to the submission by PFA, it is my view that those sorts of occupational health and safety matters are better dealt with at first instance internally and that the approach of Acting Inspector Byers is the correct one, to look broadly at the nature of the accommodation and then deal with personal matters on a case by case approach.
[10] This means in conclusion, that I find that clause 71 does not create an entitlement for a particular level of accommodation. I find that clause 71.6 does require the payment of an inadequate accommodation allowance as prescribed in Schedule C where and on the facts before me, and using the tests under 71.5(a) and the history of that provision, I find that the accommodation in Mount Buller for this occasion is inadequate.
[11] Having announced the decision I realised that I had not addressed one issue and that relates to the phrase “Where the employee is required”.
[12] The PFA argue that the focus should be whether or not there was available accommodation of the relevant standard. If this was the case then inadequate accommodation was not required.
[13] VicPol argue that the phrase sits more comfortably with where the employer requires a police member to occupy a particular type of accommodation. In my view this understanding is preferred. In the result, for operational or other reasons, the employer may require members of VicPol to locate themselves in a particular venue.
DEPUTY PRESIDENT
Appearances:
C. Kennedy with M. Clark for the Police Federation of Australia.
A. Nicolaou with J. Baker and A. Tasominos on behalf of Victoria Police.
Hearing details:
2014.
Melbourne:
June, 4.
Printed by authority of the Commonwealth Government Printer
<Price code A, AE889678 PR551478>
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