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

[2015] FWC 2450

[2015] FWC 2450 [Note: An appeal pursuant to s.604 (C2015/3757) was lodged against this decision - refer to Full Bench decision dated 24 July 2015 [[2015] FWCFB 4404] for result of appeal.]

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
(C2014/2950)

State and Territory government administration
DEPUTY PRESIDENT SMITH	MELBOURNE, 10 APRIL 2015

Relocation expenses of Detective Senior Constable Ian Sorrell.

Introduction

[1] The Police Federation of Australia seeks a determination of a dispute arising under clause 90 of the Victoria Police Force Enterprise Agreement 2011 [AE889678](The Agreement). The totality of clause 90 deals with relocation expenses for an employee as a result of a transfer. Clause 93 of the Agreement provides a separate basis for settling disputes about this subject matter. It provides:

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.

Brief background

[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].

Preliminary argument by Victoria Police

[5] It is argued by Victoria Police that the operation of clause 90 does not arise because DSC Sorrell has not been transferred. Clause 90 is activated when “An employee who, because of a transfer from one position to another and in the opinion of the employer, is reasonably required to change an ordinary place of residence, is entitled to relocation expenses in accordance with the provisions of this clause”. [Clause 90.1 of the Agreement.]

[6] The perquisite to the operation of this clause is that a transfer takes place and that the employer is of the opinion that the employee is reasonably required to change an ordinary place of residence. It is argued by Victoria Police that the operation of clause 93 arises only when there is a dispute about the operation of clause 89 and 90 [Clause 89—Relocation expenses on appointment and clause 90—Relocation expenses as a result of a transfer].

[7] The Police Association meet this proposition by arguing that clause 93 is not reliant solely on a dispute about the operation of clauses 89 or 90 but can stand alone on any matter involving relocation or relocation expenses.

Construction of agreements

[8] As the Full Bench in The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited [(2014) FWCFB 7447] stated:

“[19] The general approach to the construction of instruments of the kind at issue here is set out in the judgment of French J, as he then was, in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union   (Wanneroo):

‘The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to '...the entire document of which it is a part or to other documents with which there is an association'. It may also include '... ideas that gave rise to an expression in a document from which it has been taken' - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).’

[20] To this we add the oft-quoted observations of Madgwick J in Kucks v CSR Limited  that a narrow pedantic approach to interpretation should be avoided, a search of the evident purpose is permissible and meanings which avoid inconvenience or injustice may reasonably be strained for, but:

‘. . . the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning’

[21] Although their Honours were each dealing with the proper interpretation of an award, the same principles are apt to apply to the interpretation of enterprise agreements.  For example, similar observations were made in Amcor Limited v CFMEU (Amcor):

‘Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate.’

[22] The fact that the instrument being construed is an enterprise agreement is itself an important contextual consideration. As French J observed in Wanneroo:

‘It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg George A Bond and Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):

‘Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.’ (footnotes omitted)”

[9] I propose to adopt this approach to construction.

Conclusion on preliminary argument

[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.

DEPUTY PRESIDENT

Appearances:

P. Gioulekas with C. Kennedy for the Police Federation of Australia.

J. Baker with A. Nicolaou on behalf of the Chief Commissioner of Police (Victoria Police).

Hearing details:

2015.

Melbourne:

February, 6.

Printed by authority of the Commonwealth Government Printer

<Price code C, AE889678  PR562915>