Police Federation of Australia v Victoria Police/Chief Commissioner of Police

[2013] FWC 2893

[2013] FWC 2893

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Application to deal with a dispute

Police Federation of Australia
v
Victoria Police/Chief Commissioner of Police
(C2012/4830)

State and Territory government administration
DEPUTY PRESIDENT SMITH	MELBOURNE, 10 MAY 2013

Dispute relating to entitlement to meal claims.

Introduction

[1] The Police Federation of Australia (PFA) allege that two of its members were not paid a meal allowance as provided for in the Victorian Police Force Enterprise Agreement 2011 (the Agreement) The relevant clauses are; clause 70—Eligibility for Accommodation, Meal, Incidental Expense and Travelling Allowances and clause 75—Daily Meal Allowances. In additional, the interaction of those clauses with clause 149—Occupational Health and Safety is argued as giving rise to an ambiguity and uncertainty.

[2] The matter was notified pursuant to s.739 of the Fair Work Act 2009 (the Act) and during the proceedings reliance was placed on s.217 of the Act.

[3] The relief sought by the PFA is:

“61. The PFA seeks the variation of Clause 75.2 of the Agreement to remove the ambiguity that exists. We propose that the Clause 75.2 of the Agreement read as follows;

Part Day Absences

The employee is required to travel to undertake work and the employee:

(a) had no prior knowledge on the previous day or shift for the requirement to undertake such work; and

(b) is required to be absent from the employee’s normal work location for a continuous period of 5 hours or more; and

(c) is required to travel beyond a 24 kilometre radius of the employees station in Melbourne, Ballarat, Bendigo and Geelong or, in all other parts of Victoria, such a distance that the employee cannot reasonably return to their station or place of employment.

Where an employee is unable to meet a precondition under Clause 75.2 a meal allowance will be payable where;

a) The employee cannot readily return to their usual place of work for a meal; and

b) The employer has not expressly provided the employee with access to safe meal preparation or food storage facilities and dining facilities at appropriate times during their period of work; and

c) The employer has not provided adequate meals to the employee at appropriate times during the employee’s period of work.”

Background

[4] In June 2012, Sergeant Martin McLachlan and Leading Senior Constable Aaron Madsen took part in an operation on the Hume Highway designed to reduce road trauma by providing a police presence over an extended period to ensure compliance with legislation relating to the heavy vehicle industry. The operation orders provided that: “Members will be required to organise and supply their own meals” [paragraph 24—Operation Juggernaut]. It was submitted by the PFA that the operational orders did not take account of the fact that the two members concerned were Mansfield Patrol members who were working outside their normal response zone.

[5] Apart from attending their usual place of work at the commencement of the shift, the Officers otherwise completed the 8 hour shift (2100hrs—0500hrs) patrolling the Hume Freeway. During the shift the Officers concerned purchased meals. Subsequently they submitted claims which were refused.

The Agreement Provisions

“70.2. Where in the opinion of the employer, special circumstances exist in respect of accommodation, meals, incidental expenses and travel, for which provision is not made in the Agreement, the employer may pay such allowances as it considers are reasonable under the circumstances.

........

75.2. Part Day Absences

The employee is required to travel to undertake work and the employee:

(a) had no prior knowledge on the previous day or shift for the requirement to undertake such work; and

(b) is required to be absent from the employee’s normal work location for a continuous period of 5 hours or more; and

(c) is required to travel beyond a 24 kilometre radius of the employee’s station in Melbourne, Ballarat, Bendigo and Geelong or, in all other parts of Victoria, such a distance that the employee cannot reasonably return to their station or place of employment.

.......

149.1. The employer acknowledges and supports the rights of employees to work in an environment, which is, so far as is reasonably practicable, safe and without risks to health consistent with the Occupational Health and Safety Act 2004. The parties are committed to consultation and resolution of Occupational Health and Safety (OH&S) issues.

149.2. The employer recognises the PFA as a legitimate representative of employees for OH&S matters and undertakes to comply with relevant occupational health and safety legislation.

149.3. This Agreement commits Victoria Police and the PFA to improving health and safety. This will be accomplished through the ongoing development, in consultation with employees of their Health and Safety Representatives, of management systems and procedures designed, as far as is reasonably practicable to:

(a) identify, assess and control workplace hazards;

(b) reduce the incidence, severity and cost of occupational injury and illness; and

(c) provide a rehabilitation system for workers affected by occupational injury or illness.

149.4. OH&S statutory requirements, as well as codes of practice, guidelines and Australian standards are minimum standards and will be improved upon where practicable.”

Evidence and the Arguments

[6] Evidence was given by Sergeant McLachlan and Leading Senior Constable Madsen. Their evidence was of a factual nature and outlined the operation and activities they undertook. In addition, they stated: that it was impractical for them to return to Mansfield for the meal; there was no refrigerated facility or appropriate meals storage facility within the vehicle to store fresh food; the circumstances surrounding the meal break they took and the processing of the claim. The evidence noted that there was no specific direction in the operational orders about the taking of the meal break.

[7] I note at this stage that, whilst it is clear that Sergeant McLachlan received the operational orders on 25 April 2012, there is no clear evidence that Leading Senior Constable Madsen viewed those orders at that time or any reasonable period prior to the commencement of the operation.

[8] Sergeant McLachlan and Leading Senior Constable Madsen were both cross-examined on the proximity of police stations for which access could be gained to take a meal break.

[9] I add at this stage that, in my view, this is not a matter where either of these Officers were seeking to claim something that they knew was questionable or even not available. Both Officers acted in a manner which they believed was acceptable and consistent with prevailing entitlements. The Leading Senior Constable applied to Sergeant McLachlan who was content to approve the payment and the Sergeant applied to his direct report but the claim was rejected. This led to an examination of both claims. This is a matter which Victoria Police are pursuing on the basis of the proper application of the Agreement and there is no suggestion of obvious wrongdoing by the Officers concerned.

[10] For Victoria Police, two witnesses were called. They were: Senior Sergeant R. Willingham and Inspector D. Trimble. The Senior Sergeant outlined the history and scope of the operation. He stated that the operational orders were designed to allow the Mansfield Officers the flexibility to take their meals at a convenient location, whilst patrolling the 270 km Hume Highway. He added, that it was custom and practice in Victoria Police where an Officer is working away from their usual station and is unable to return to that station, that the Officer can attend the nearest police station for the purpose of preparing and eating a meal. Senior Sergeant Willingham stated that this would have been known to the Officers. The evidence of the Senior Sergeant went to the duties of the Officers that night and their proximity to other police stations at or around the time when a meal break could be taken. Senior Sergeant Willingham rejected the claim made by Sergeant McLachlan on the basis that he had prior knowledge of the fact that he would be away from the Mansfield police station during the operation. He added that he was not personally aware where the allowance had been paid in similar circumstances.

[11] Inspector Trimble’s evidence was that members are encouraged to attend nearby police stations to partake in meals so that they are out of view of the public and where appropriate facilities are available. The evidence of the Inspector was that the two Officers were able to attend a police station at any time during their shift and that it was unlike other special circumstances where this may not be possible.

[12] During cross-examination, the PFA explored whether or not ice-coolers or eskies were available for members to carry prepared meals or fresh ingredients. The response was that some stations possess such equipment but not all. Other questions were put to the witnesses about instances (the Grocon dispute, Numurkah floods, Commonwealth Games and Economic Forum) where either a meal was provided or an allowance paid. These examples were said by the witnesses to be examples of special circumstances and different from the operation in question.

[13] It was the view of Victoria Police that the Officers had prior notification so that the meal reimbursement provisions do not apply. Further, that there were no special circumstances which would warrant the application of Clause 70.2. The basis of this submission was the custom and practice of members of Victoria Police using nearby police stations to prepare and eat meals. This combined with the proximity of the various police stations during the shift meant that there were no special circumstances. Finally, it was submitted that there is no ambiguity or uncertainly in the operation the Agreement in relation to the occupational health and safety of the Officers.

[14] The PFA, on the other hand, argued that the proper operation of Clause 149 was inextricably tied up with the operation of clauses 70.2 and/or 75.2. In this connection, the PFA drew upon the history of the clause which arose from Determination 38 of the Police Classification Board; the Victoria Police Force Award 1992 and a decision of Pimm C of the then Employee Relations Commission of Victoria 1 These were called in aid to demonstrate that where an Officer could not reasonable attend their usual place of work then an meal allowance was paid. A reading of that material could lead to the conclusion that this is not a new controversy.

[15] The PFA went to some lengths to argue that an Officers occupational health and safety may be a risk unless they are given the correct equipment to transport meals.

The Approach to Construction and allegations of Ambiguity and Uncertainty

[16] There is no issue between the parties in relation to the approach the Commission should adopt to the construction of Agreements. This is a path well trodden 2 and does not need reciting but properly applied. In relation to the existence of ambiguity and uncertainty, again it is common ground that it must be firstly established that such ambiguity or uncertainty exists as a prerequisite to the exercise of jurisdiction.3

Conclusion

[17] I turn firstly to Clause 75.2. Under this clause, the ordinarily and natural meaning compels the conclusion that all the elements of 75.2(a), (b) and(c) must be present to be eligible for a meal allowance. I am satisfied that Sergeant McLachlan did have prior knowledge of the operation that he would be absent from the normal work location for a continuous period of 5 hours or more and could not reasonably return to his station. I cannot be satisfied on the evidence, that Leading Senior Constable Madsen did have prior notice. 4

[18] As to the operation of Clause 70, it appears to me that notwithstanding the constraints contained in Clause 75.2, there nonetheless exists a discretion to pay a meal allowance in special circumstances. I was referred to a decision of Burchett J in Holpitt Pty Ltd v Varimu 5 which expressed the opinion that to show special circumstances it must take the matter out of the ordinary course. Critical to an examination of this matter is the availability or otherwise of alternative venues for the preparation and taking of meals. I am satisfied on the evidence that alternative facilities were reasonably available and that it is appropriate that these be used. The cases cited where Victoria Police have acted under the special circumstances clause appear on their face to be out of the ordinary.

[19] I now turn to consider whether or not there exists an ambiguity or uncertainty in relation to the operation of clause 149 and the health and safety issue which was said to be facing the two Officers. Essentially it is submitted that because they were not provided equipment in which to store fresh food during a shift then occupational health and safety considerations come into place which demand the alteration of the existing clause.

[20] I am not satisfied that any such ambiguity or uncertainty exists. If there are occupational health and safety requirements for the provision of equipment to store fresh food then that matter can be looked at discreetly and it does not require an alteration to the clause which contains restrictions on when an expense claim can be made. In addition, it would only be if such an obligation existed and was unable to be complied with, that clause 70.2 might be enlivened. Whilst it might be true that the Occupational Health and Safety Act 2004 does not form part of the Agreement, it can be said that the parties have agreed to comply with relevant occupational health and safety regulations and a dispute can arise about whether or not compliance has occurred [see Clause 149.2]. In addition, the parties have agreed that OH&S statutory requirements, codes of practice guidelines and Australian standards will be improved upon where practical [see Clause 149.4]. That can also give rise to a dispute.

[21] The OH&S issue needs to be tackled directly and does not give rise to an ambiguity or uncertainty.

[22] With the exception of the finding made in relation to Leading Senior Constable Madsen, I dismiss the application.

DEPUTY PRESIDENT

Appearances:

L. Miller for the Police Federation of Australia.

C. Thompson for Victoria Police.

Hearing details:

2013.

Melbourne:

January, 17.

 1   Decision E93/0177

 2   Kucks v CSR Limited (1996) 66 (IR) 182; United Firefighters’ Union of Australia and Another v Metropolitan Fire and Emergency Services Board. [(2006) FCAFC 18]

 3   Re: Beltana Highway Mining Pty Ltd (PR932468); Re Tenix Defence Systems Pty Ltd Certified Agreement 2001—2004 [AIRCFB  PR917548]

 4   See PN94-95, PN336 which does not confirm that Leading Senior Constable was advised supported by Exhibit PFA2 at paragraph 2

 5   [(1991) 103 ALR] 684 at 687

Printed by authority of the Commonwealth Government Printer

<Price code C, AE889678  PR536472>