Police Federation of Australia v Victoria Police/Chief Commissioner of Police
[2015] FWCFB 4404
•24 JULY 2015
| [2015] FWCFB 4404 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Victoria Police/Chief Commissioner of Police
(C2015/3757)
VICE PRESIDENT WATSON | MELBOURNE, 24 JULY 2015 |
Appeal against decision [[2015] FWC 2450] of Deputy President Smith at Melbourne on 10 April 2015 in matter number C2014/2950 – interpretation of enterprise agreement – whether permission to appeal – Fair Work Act 2009, s.604.
Introduction
[1] This decision relates to an application for permission to appeal under s.604 of the Fair Work Act 2009 (the Act) against a decision of Deputy President Smith dated 10 April 2015. The decision concerns a dispute between the Police Federation of Australia (PFA) and Victoria Police/Chief Commissioner of Police (Victoria Police) relating to a claim by Detective Senior Constable Sorrell (DSC Sorrell) to be paid relocation expenses under the Victoria Police Force Enterprise Agreement 2011 (the Agreement).
[2] At the hearing of the appeal on 12 June 2015 Mr P. Gioulekas and Mr C. Kennedy appeared for the PFA and Ms J. Baker appeared for Victoria Police with Mr A. Nicolaou.
Decision under Appeal
[3] The circumstances that gave rise to the dispute were summarised by the Deputy President as follows:
“[2] For personal reasons on which I will not elaborate, Detective Senior Constable Sorrell needed to move from the Horsham Police Station where he was attached to the SOCIT. The initial move was to temporary duties at Melbourne SOCIT. This occurred on 16 January 2012. On 8 October 2012, DSC Sorrell sold his Horsham residence and sought relocation expenses on the basis of special circumstances as provided in clause 93.2(c) of the Agreement. On 12 November 2012, DSC Sorrell commenced duties at Moorabool CIU. On 11 February 2013 DSC Sorrell commenced duties at Ararat SOCIT.
[3] During this time efforts were made by DSC Sorrell to achieve a Regulation 21 Transfer to Melbourne although the evidence was that DSC Sorrell was seeking to work in Ballarat.
[4] The present position is that DSC Sorrell is working at the Ararat SOCIT office and remains gazetted to Horsham SOCIT. Another factual consideration is that both Horsham and Ararat operate one unit, managed by a Sergeant, who for most of the time is located in Horsham [see Transcript PN177]. DSC Sorrell could be allocated to either office from his position at Horsham. However, to move an employee from Horsham to a vacant position at Ararat against their wishes would require a management initiated Regulation 21 transfer [see Transcript PN197].”
[4] It was accepted by DSC Sorrell and Victoria Police that DSC Sorrell was not transferred and had no entitlement under the substantive terms of the Agreement. The claim was advanced as seeking reimbursement under the dispute settlement clause relating to relocation expenses. The relevant clause of the Agreement is clause 93. The claim made by DSC Sorrell was for reimbursement of costs associated with the sale of his residential property due to his ‘special circumstances’.
[5] Clause 93 of the Agreement is as follows:
“93. Disputes in relation to relocation expenses
93.1. Any dispute or disagreement arising in relation to relocation, relocation expenses or allowances shall be dealt in accordance with the Dispute Resolution procedure set out in clause 11 of this Agreement.
93.2. Subject to compliance with the Dispute Resolution procedure set out in clause 11 of this Agreement, where a dispute occurs in relation to relocation or relocation expenses the matter may be referred to Fair Work Australia for a decision in relation to:
(a) Whether the employee was reasonably required to change their ordinary place of residence; or
(b) the quantum of reimbursement for accelerated depreciation allowed by the employer; or
(c) any special circumstances not provided for in this Agreement and where no agreement can be reached.”
[6] Clause 93 is contained in Part 12 of the Agreement, headed “Allowances” which commences at clause 70. A division of Part 12 is headed “Relocation Expenses and Allowances” and commences at clause 89. Clause 89 deals with Relocation Expenses on Appointment. Clause 90 deals with Relocation Expenses as a Result of a Transfer. Clause 91 deals with Living Away From Home Allowance. Clause 92 deals with Relocation Expenses on Retirement. Clause 93 follows and is the last clause of Part 12.
[7] Arising from a preliminary argument advanced by Victoria Police, the Deputy President considered whether clause 93 of the Agreement is only operable when there is a dispute about the operation of clauses 89 and 90, concerning relocation expenses as a result of an appointment or a transfer, respectively or whether it has broader application, such as when no transfer has occurred.
[8] The Deputy President considered the arguments of the parties and the approach to construction of agreements and concluded:
“[10] It is clear, in my view, that the context and purpose of clause 93 is to provide additional scope for the settlement of disputes about the operation of, in this case, clause 90. It is a safety valve through which other special circumstances not identified by clause 93.2(a) or (b) can be progressed. To travel beyond the accepted language of the Agreement in relation to relocation or relocation expenses would be inappropriate and would create uncertainty.
[11] The circumstances facing DSC Sorrell are in one sense special, but they are largely personal in nature. It is also true that Victoria Police needs to consider the circumstances of its employees in the delivery of its services. However administrative action which does not involve a transfer does not involve the clauses under consideration. I make no observation about the operation of Police Regulations.
[12] I find that:
● DSC Sorrell has not been transferred giving rise to an entitlement under clause 90, and
● Clause 93 does not apply independently of clause 90.”
The Nature of the Appeal
[9] The appeal is made under s.604 of the Act. Permission to Appeal is required. As the decision under appeal concerns the interpretation of an industrial instrument, the decision is not properly described as discretionary.
[10] There are two bases in s.604 of the Act for granting permission to appeal. If the Commission is satisfied that it is in the public interest to grant permission it must do so. Otherwise the conventional considerations for granting permission apply—if there is sufficient doubt about a decision to warrant its reconsideration or an injustice may result if permission is not granted. 1 In order to determine whether to grant permission to appeal and whether to allow the appeal it is necessary to consider the grounds of appeal and the interpretation adopted by the Deputy President.
Grounds of Appeal
[11] The grounds of appeal advanced by the PFA can be summarised as follows:
- The Deputy President erred in failing to undertake, in accordance with accepted principles, the task of construction of the phrase “any special circumstances not provided for in this Agreement” in clause 93.2(c) of the Agreement
- The Deputy President erred in his conclusions, and
- The Deputy President erred in failing to disclose an adequately reasoned basis in concluding that ‘special circumstances’ do not exist and that the relevant phrase is not applicable to those claims not involving transfer, and that clause 93.2(c) is only applicable to claims where a transfer has occurred.
[12] The PFA submits that there is substantial public interest in the matter to justify the granting of leave to appeal, because:
- the meaning and effect of the relevant provision of the Agreement is an important and relevant matter for Victorian Police Officers, rulings upon which materially impact upon the interests of employee and employer on an on-going basis
- failure to apply relevant authorities on the matter discloses substantial error in approach to determination of the answer to the question as to whether special circumstance relocation expense claims not involving a transfer are encompassed in the relevant phrase
- the decision did not provide an adequately reasoned basis for the conclusion in relation to claimants ‘special circumstances’ predisposing to lack of clarity and uncertainty, and
- the potential misinterpretation of the Agreement has the potential to impact 14,000 serving Victorian Police Officers.
Does clause 93 provide a remedy in these circumstances?
[13] The principles for interpreting the terms of enterprise agreements are well established and were referred to by the Deputy President in his decision 2. They are not in dispute.
[14] In response to questions from the Bench the parties filed supplementary submissions regarding the history of the agreement clauses in question. It appears that reimbursement provisions originated in the 1992 Award. The PFA submits that the 2001 Agreement “germinated” a requirement for a broader and more expansive approach to construction compared to the previous award provision. It submits that the 2007 Agreement effectively adopted the current formulation and entailed a shift from the narrow and confined scope of the award to the broader and expansive application, through consolidation, under the agreement.
[15] Victoria Police submits that the history provides no support for the PFA interpretation. Rather, it submits that the history supports the interpretation adopted by the Deputy President because a plain reading of the 2001 provisions did not have the effect of creating a broad remedy. Neither party was able to adduce evidence of extrinsic materials establishing the mutual intention of the parties at the time the changes were made.
[16] In accordance with established principles of interpretation the meaning of the words used in the agreement will primarily be based on the normal meaning and the context in which they are used. Enterprise agreements prescribe entitlements and obligations. It is a requirement of the Act that they also provide for a process for settling disputes about matters arising under the Agreement (and the National Employment Standards). For example if a dispute arises as to the interpretation of a clause of the Agreement then that dispute can be dealt with under the dispute settlement procedure. There is no doubt that clause 11 and clause 93 perform that function.
[17] The PFA contends however that clause 93 goes further and effectively creates a right to progress a claim for an entitlement not dealt with in the Agreement. As relocation expenses are only payable under the Agreement when there has been a transfer of location by Victoria Police, reimbursement in other circumstances is not dealt with in the Agreement at all. The PFA effectively seeks the creation of a new entitlement that does not presently exist by operation of the dispute settlement provision.
[18] Such a broad power is inconsistent with normal conceptions of enterprise agreements. In order to be sustained, it would be necessary to make out such an interpretation on the wording in the agreement. Further, it would be necessary to point to evidence of the mutual intention of the parties to achieve such a result.
[19] In our view much turns on the appropriate way to read the qualifying words in the preamble to clause 93.2 “in relation to relocation or relocation expenses”. The better interpretation in our view is to read them in the context of the preceding clauses that deal with such matters. We acknowledge that on one interpretation, read in isolation, the words may have broader application. However the context makes it unlikely that this was intended.
[20] Further, there is no evidence of any such mutual intention. If the provision had, in fact, evolved into one which was a separate source of new rights and obligations, it might be expected that it had been the subject of a specific claim to that effect. Further, there might have been a specific agreement to that effect. There is no evidence that this was the case.
[21] For these reasons we are of the view that the Deputy President was correct in adopting the interpretation of clause 93 that he did. The clause does not permit the pursuit of claims for the creation of new entitlements outside the notions of transfers dealt with in the preceding clauses.
Conclusions
[22] For the above reasons we consider that the Deputy President correctly upheld Victoria Police’s jurisdictional argument. We are not persuaded that this is an appropriate case to grant permission to appeal. The application for permission to appeal is dismissed.
VICE PRESIDENT
Appearances:
Mr P. Gioulekas, with Mr C. Kennedy for the Police Federation of Australia.
Ms J. Baker, with Mr A. Nicolaou for Victoria Police.
Hearing details:
2015.
Melbourne.
12 June.
Final written submissions:
Victoria Police on 19 June 2015.
Police Federation of Australia on 26 June 2015.
1 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481.
2 [2014] FWCFB 7447.
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