The Appellant v Commonwealth of Australia as represented by the Australian Federal Police
[2024] FWCFB 196
•28 MARCH 2024
| [2024] FWCFB 196 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
The Appellant
v
The Commonwealth of Australia as represented by the Australian Federal Police
(C2023/7335)
| VICE PRESIDENT ASBURY | BRISBANE, 28 MARCH 2024 |
Appeal against decision [[2023] FWC 2942] of Commissioner Simpson at Brisbane on 10 November 2023 in matter C2023/3652 – appeal dismissed.
The Appellant has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision issued by Commissioner Simpson on 10 November 2023 (decision) which determined a dispute arising under the Australian Federal Police Enterprise Agreement 2017-2020[1] (Agreement). The decision arose from an application made by the Appellant under s 739 of the Act and the dispute procedure in clause 71 of the Agreement.
The dispute concerned the proper interpretation of sub clauses 64(3), 64(4) and 64(6) of the Agreement and their application to the Appellant whilst employed by the Respondent to perform surveillance duties in connection with its crime and covert technical operations. These provisions of the Agreement concern employment related travel.
At the hearing before us, the Respondent sought and was granted permission to be legally represented, such application being unopposed by the Appellant. With the consent of the parties, a confidentiality order was issued pursuant to s 594 of the Act pursuant to which, amongst other things, the Appellant’s name was suppressed.[2]
Relevant background
For approximately nine years, the Appellant was engaged by the Respondent to perform surveillance duties to support the Respondent’s operations and law enforcement responsibilities across the South East Queensland geographical region. In this role, the Appellant was provided with an employer-issued motor vehicle, which they were authorised to garage at their place of residence. The Appellant was required to start and finish work at different “target locations” each day. For each shift, this involved the Appellant, as a “surveillance team member,” travelling in the employer-issued vehicle from home to the target task or location. The Appellant carried controlled accoutrements, including a firearm and ammunition.[3]
In May 2022, the Appellant raised a dispute with the Respondent pursuant to clause 71 of the Agreement. The Appellant contended, in broad terms, that the Respondent was in breach of clause 64 of the Agreement pertaining to employment related travel.[4]
In the absence of a resolution the Appellant referred the matter, pursuant to s 739 of the Act and clause 71(11) of the Agreement, to the Commission to deal with the dispute.[5] It is not in contest that the Commissioner was empowered by clause 71(12) of the Agreement to determine the dispute by arbitration.[6]
The decision
In the decision, the Commissioner noted that as a surveillance team member, the Appellant had been provided with an employer-issued motor vehicle, equipped with lights, sirens and a police radio, and stated:[7]
The Applicant submitted they were directed to keep this vehicle at their home address and was also directed to store accoutrements. The Applicant submitted that they were given a time and start location for the next day, usually via SMS. At the start of the workday, they would place accoutrements in an approved carriage system on their person, place a number of items in the AFP vehicle and travel to the designated start location (which was not the usual place of work). During this journey, the Applicant submitted they were expected to monitor the work provided phone and Police Radio for updates to the start location, as well as intelligence updates.
Before the Commissioner, the Appellant contended that under the “employment related travel” provision at clause 64 of the Agreement, the commute to and from home and the designated target location each shift was “operational duty” and should have counted towards their ordinary hours of work (defined in clause 16(1) of the Agreement as the “Normal Working Hours”), by operation of sub clause 64(3).[8] The entitlement was said to arise by reason of the expectation upon surveillance team members to inspect and maintain the employer-issued vehicle before departing home, and during the journey to conduct counter-surveillance detection runs, monitor the police radio, telephone and tracking systems, and read intelligence updates.[9]
Alternatively, the Appellant contended that sub clauses 64(4) and 64(6) of the Agreement applied, with the result that the Appellant was undertaking “employment related travel” between home and the designated target location each shift. The decision records the basis for this contention as follows:[10]
(a)the Appellant was required to undertake travel for work related reasons (to conduct surveillance);
(b)the Appellant travelled away from the usual place of work (that is, to a target location and not to the Brisbane Airport office, which the Appellant contends was the home base);
(c)the Appellant travelled to an alternative location (being any target location that was not the Brisbane Airport office); and
(d)the Australian Taxation Office has deemed that such travel, including to and from home, is to be deemed as “employment related travel.”
The Commissioner recorded that the Respondent proposed three questions for determination of the matter, and his view that those questions were appropriate to determine the dispute.[11] The questions were as follows:
Does clause 64(3) operate to create an entitlement for AFP members’ travel time to and from home to surveillance duties to be considered duty counting towards Normal Working Hours?
Does clause 64(4) operate to create an entitlement for AFP member’s travel time to and from home to surveillance duties to count as Ordinary Travelling Time (OTT)?
Does clause 64(6) operate to create an entitlement for AFP members’ to be paid an additional base salary hourly rate for Excess Travelling Time (ETT) for travel time to and from home to surveillance duties?
The Respondent rejected each of the Appellant’s contentions and submitted that the Commissioner should answer each of the three questions posed in the negative. In summary, the Respondent relevantly said that on its proper construction, sub clause 64(3) does not operate to provide surveillance team members with an entitlement to record Normal Working Hours for travel time to and from home to a designated target location when in possession of their controlled items.[12]
Further, the Respondent submitted that the employment related travel provisions in sub clauses 64(4) and 64(6) cannot apply to surveillance team members’ travel to and from home to surveillance duties. This is because surveillance team members are not travelling away from their “usual place of work” to an alternative location as required by these provisions. The Respondent’s position is that the Appellant’s usual place of work was the South East Queensland region.[13]
In the decision, the Commissioner determined that the relevant provisions of clause 64 of the Agreement did not create an entitlement for the Appellant’s commute to be considered “operational duty” by operation of sub clause 64(3), or “employment related travel” under sub clauses 64(4) and 64(6). The Commissioner relevantly reasoned as follows:
[58] I am satisfied that the Operations working pattern affording 30 minutes or 60 minutes paid time depending on the location of the work, is intended to operate in the manner as submitted by the Respondent. It is clear that the AFP EA does not operate in the manner as has been submitted by the Applicant, that being that the Applicant is on duty from the point at which they commence to travel to work at a designated location when that travel is in a location in the region of Brisbane or the Gold Coast within the Northern Command. I agree with the Respondent’s submission that the employee is on duty and performing normal working hours only from the commencement of their rostered shift, when they are directed to commence duty by their supervisor.
[59] I also agree that the disputed travel is local travel not intended to be caught by clause 64(4) or 64(6), and that the performance of work within the Brisbane or Gold Coast area could properly be described as the Applicant’s usual place of work under the arrangements within the Northern Command under the terms of the AFP EA, and the Applicant’s usual place of work is not intended to be limited to the Airport Office.
[60] I also agree with the Respondent’s submission that the ATO Ruling does not assist the Applicant as it is intended to operate for taxation purposes and it is not directed to the interpretation of the AFP EA, and specifically what is meant by the terms ‘operational duty’ or ‘on duty’ in the AFP EA.
The Commissioner determined that the answer to Question (1) was “no,” the answer to Question (2) was “no,” and the answer to Question (3) was “no.”
Appeal grounds and submissions
The Appellant has raised 11 grounds of appeal in the Form F7 Notice of Appeal, some of which are further addressed in the written submissions filed in support of the appeal.[14] Having regard to each of these documents, we summarise the Appellant’s appeal grounds as follows:
While the Agreement does not contain a “right to disconnect” clause in terms similar to other agreements approved by the Commission, the Respondent’s employees should not be expected to perform work without remuneration.[15]
The Respondent filed material outside of the deadline in the Commission’s directions and accordingly paragraph [2] of the decision is erroneous.[16]
The Commissioner based his decision on three questions posed for arbitration by the Respondent which are misleading, such that the Commissioner has acted upon a wrong principle and mistaken the facts. Further, the decision devotes more time to explaining the Respondent’s submissions compared to the summary of the Appellant’s submissions.[17]
The Commissioner has failed to take a material consideration into account, as the decision does not address the aspects of Commander Tanti’s evidence that were not the subject of a confidentiality order. Specifically, the expectations of the Respondent in relation to the surveillance team members outside of rostered hours or while travelling to a target location.[18]
The reasons at [62] of the decision describe “travel time to and from home to surveillance duties” which fails to take into account that operational duty is being performed during this time.
The Commissioner erred at [58] of the decision by acting upon a wrong principle or mistaking the facts, as the Operational Working Pattern in the Agreement does not make mention of the 30 minute or 60 minute travel time attributed to arrival at target locations.[19]
The Commissioner has mistaken the facts, acted upon a wrong principle and been guided by irrelevant factors when determining at [59] of the decision that the disputed travel constitutes “local travel” and is therefore not caught by sub clauses 64(4) or 64(6). This finding fails to take into account the duration of some journeys (such as a 90km journey from Brisbane Airport to Burleigh Heads). Further, the facts support a conclusion that the Brisbane Airport office is the “usual place of work,” noting that the term is not defined in the Agreement.[20]
The Commissioner has mistaken the facts when concluding, at [46] of the decision, that the pre-commencement duties were of benefit to a surveillance team member, and the conclusion is contradictory to [44] of the decision. Further, the core composite allowance does not remunerate members for additional hours of attendance, or for conducting operational tasks or duties in their own time.[21]
The Respondent did not address the Appellant’s enquiry about the views of previous AFP Commissioners about whether travelling to a target location constitutes duty.
There is no provision in the Agreement that requires employees to perform work tasks in their own time without remuneration.
Commander Tanti’s expectation that employees work outside of hours without remuneration is not reflected in the Agreement. Other aspects of Commander Tanti’s witness statement are incorrect, specifically [11], [18] and [22] which concern attendance at the Brisbane Airport office being the “usual place of work”; [29] which deals with ensuring the employer-issued vehicle is roadworthy and maintained; [38] regarding travel time principles; [43], [44] and [45] regarding the expectation that surveillance team members answer their phone or receive radio calls and monitor the police radio for updates while travelling to a target location; and [47] concerning the expectation that surveillance team members will conduct counter surveillance methods.
The Appellant summarises the matter in the following way, in the appeal before us. Surveillance team members are being required to perform duties, for the Respondent, before leaving home and throughout the entirety of the journey from home to the designated target location. These duties are comprised of:[22]
(a)Inspecting the employer-issued vehicle before leaving home to travel to the target location;
(b)En-route to the target location and throughout the entirety of the commute, carry out the following tasks:
·Monitor and answer the police radio and mobile phone;
·Monitor and respond to tracking system information (thereby conducting electronic surveillance and if the target was moving, react accordingly);
·Fuel and wash vehicle when required;
·Read intelligence briefings;
·Conduct counter surveillance detection runs.
The Appellant contends that these tasks, performed while in control of Respondent-issued accoutrements, constitutes “operational duty” and such hours should be accrued as Normal Working Hours, by operation of sub clause 63(3) of the Agreement.
With respect to the application of sub clauses 64(4) and 64(6) of the Agreement, the Appellant submits that the Commission has been misled by the Respondent’s contention that a surveillance team member’s “usual place of work” is the geographical region of South East Queensland. The Appellant’s position is that the usual place of work is the Brisbane Airport office, which the Appellant attended fortnightly or otherwise when not designated an operational task. In this respect, the Appellant contends that the Respondent’s attribution of a 30 minute or 60 minute travel time for the purposes of determining the composite allowance is calculated by reference to time spent travelling from the Brisbane Airport, and this therefore supports the Appellant’s position that the Brisbane Airport should be regarded as the “usual place of work.”[23]
The Appellant submits that it is in the public interest for the Commission to grant permission to appeal because both the Commission and the Respondent have an obligation, amongst other things, to act fairly. A construction of the Agreement that supports the Respondent’s agenda may damage public confidence in the system.
The Respondent contends that the Commissioner correctly answered the three questions for arbitration. It submits that the Appellant has not identified any public interest or other reasons which would give rise to the grant of permission to appeal.
Consideration
The application determined by the Commissioner involved the interpretation of the Agreement. The correctness standard applies to an appeal against such a decision.[24] The Commissioner construed the Agreement to determine the meaning of the disputed term and then applied factual findings he had made to resolve the underlying dispute regarding whether the Appellant was entitled, in the manner contended, to the benefits for which clause 64 makes provision.
The task on appeal is to consider whether the answers given by the Commissioner as to the proper construction of the Agreement are correct. Error of the kind identified in House v The King[25] need not be shown for this purpose. However, the factual findings made by the Commissioner might be shown to have been erroneously made in the sense described in House v The King. That is, the findings made were mistaken such that, if the erroneous findings are material, we may review the Commissioner’s determination and exercise our own discretion in substitution for that of the Commissioner.[26] If we conclude that the answers given by the Commissioner were wrong, the appeal must be upheld, and the Full Bench may substitute the correct answer.[27]
The principles of interpretation of enterprise agreements are well established.[28] In summary, the starting point is the ordinary meaning of the words, read as a whole and in context. Context may be found in the provisions of the entire enterprise agreement, or in the arrangement and place of the words in the enterprise agreement, and may extend to other documents with which there is an association. The statutory framework under which the enterprise agreement is made or in which it operates may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in which an agreement is made and operates is relevant, as is the evident purpose of the provisions or expressions being construed. A purposive approach is preferred to a narrow or pedantic approach, as the framers of such documents were likely to be of a practical bent of mind. The words are not to be interpreted in a vacuum or divorced from industrial realities. The customs and working conditions of the particular industry are relevant. But the task remains one of interpreting the document, and not to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the instrument.
We commence by considering the Appellant’s employment arrangements under the Agreement, for the period relevant to the application.
The Appellant performed the role of a surveillance team member. Pursuant to sub clause 17(1) of the Agreement, surveillance team members are assigned to an Operations Working Pattern.[29] The evidence before the Commissioner was that the Operations Working Pattern applies subject to the following:[30]
(a)surveillance team members are required to demonstrate flexibility and to work the hours and patterns of attendance directed by their supervisor on a 24 hour 7 day a week basis including public holidays (sub clause 23(1) of the Agreement);
(b)surveillance team members work 40 hours per week averaged over each three month averaging period (sub clause 23(2) of the Agreement);
(c)any hours worked must be approved by the team member’s supervisor before they are worked (sub clause 16(7) of the Agreement); and
(d)surveillance team members receive a core composite allowance of 22% base salary in recognition of the requirements to demonstrate flexibility (sub clause 18(6) of the Agreement).
Commander Tanti is the Respondent’s Commander Investigations in Northern Command, and is responsible for crime and covert technical operations in Queensland, amongst other things.[31] The Respondent’s surveillance operations are part of its crime and covert technical operations capability. Commander Tanti’s evidence before the Commissioner was relevantly that:
(a)Given the nature of surveillance duties, surveillance team members do not regularly work at the Northern Command’s Brisbane Airport office and do not otherwise have a fixed place of work.[32]
(b)Brisbane-based surveillance team members perform surveillance duties across South East Queensland, primarily in the Brisbane and Gold Coast regions.[33]
(c)Surveillance team members work flexibility in terms of their daily working location, and will work anywhere in South East Queensland that the Respondent requires them to.[34]
(d)Surveillance team members are required to travel from home to the designated target location to which they are assigned each shift.[35]
(e)Surveillance team members are provided with employer-issued vehicles, with full coverage of petrol and toll costs, to perform their duties, which they are permitted to garage at their place of residence.[36]
(f)Surveillance team members carry their controlled items (e.g firearms) when travelling to and from a task or target location and are permitted to store their controlled items at their place of residence.[37]
(g)There is an expectation that while travelling to a designated target location, surveillance team members will answer the phone and monitor the police radio for updates (including in respect of updates to the target location).[38] Commander Tanti refers to these tasks as “pre-commencement duties.”
Clause 18 of the Agreement, to which [25](d) of this decision refers, is titled “Composite Allowance.” The composite allowance is paid in recognition, amongst other things, of expanded working hours or normal patterns of attendance that are required by surveillance team members under the Operations Working Pattern (sub clause 18(2)(a)). Sub clause 18(6) of the Agreement sets the amount of the core composite allowance at 22% of base salary.
The evidence before the Commissioner in relation to the core composite allowance was that the “pre-commencement duties” expected of surveillance members when travelling to and from home to surveillance duties are remunerated by receipt of the 22% core composite.[39]
Consistent with the requirement for surveillance team members to demonstrate flexibility in hours and patterns of attendance on a 24 hour, seven day a week basis (sub clause 23(1)) rostered shifts for surveillance team members in Northern Command have an allowance of 30 minutes at the start and end of each shift, which applies to travel within the Brisbane region. An additional allowance of 30 minutes is calculated for travel within 40-90 kilometres of the Brisbane Airport office at the start and end of each shift, with discretion to assign additional time for travel beyond 90 kilometres.[40]
The 30 minute or 60 minute travel time benefit is not a term of the Agreement but rather arises pursuant to a separate policy document, the Northern Command Surveillance Travel Time Principles.[41] The evidence before the Commissioner was that this time is treated by the Respondent as operational duty, counting towards the surveillance team member’s Normal Hours of Work as part of the Operations Working Pattern. Outside of the designated travel time, a surveillance team member is on private travel.[42]
Against this context, we turn to consider clause 64 of the Agreement, titled “Employment Related Travel.” The relevant aspects of clause 64 are set out below:
“64 Employment Related Travel
(1)The AFP will meet all approved costs associated with AFP employment related travel requirements.
(2)Where an Employee on approved employment related travel is required to immediately return to duty, this section shall cease to apply.
(3)Where an Employee is performing operational duty and is in control of their full AFP issued controlled items they will be considered to be on duty and employment related travel provisions do not apply.
Ordinary Travelling Time (OTT)
(4)An Employee who is required to undertake travel for work related reasons travelling away from their usual place of work to an alternative location:
(a) within the hours of 0600-2000 Monday to Friday for Employees under a Support or Operations working pattern or assigned to a FTM Role; or
(b) within the Employee’s normal attendance pattern for Employees under a Rostered Operations working pattern, will have the time spent in travel count towards their Normal Working Hours. The hours will not count towards penalties under any of the AFP working patterns.
(5)The Commissioner may grant, at the request of the Employee, a payment for work related travel that occurs within the timeframes outlined in sub-section 64(4). Where payment is approved, the Employee will be paid an additional Base Salary Hourly Rate for each hour of travel and any travel time paid under this sub-section will not count towards the Employee’s Normal Working Hours.
Excess Travelling Time (ETT)
(6)Where an Employee is required to undertake travel for work related reasons travelling away from their usual place of work to an alternative location, and the travel is:
(a) outside of the timeframes outlined in sub-section (4); or
(b) the travel occurs on a Designated Public Holiday,
the Employee will be paid an additional Base Salary Hourly Rate for excess time spent in travel provided that the entire period of travel (inclusive of OTT and ETT) exceeds 30 minutes on any calendar day. Any excess travelling time paid under this sub-section will not count towards the Employee’s Normal Working Hours.
(7)An Employee may, with the agreement of their Supervisor, elect to take time off in lieu of payment of excess travelling time calculated as Ordinary Time. Employees will utilise time off in lieu within the current Three Month Averaging Period or Roster Period.
(8)Time spent in travel is not considered as duty for the purposes of penalties payable under any of the working patterns and does not include time spent overnight as a result of a stopover between two destinations, including where the stopover consists of consecutive nights…”
Clause 64 contains six sub headings, only two of which are extracted above. In addition to the provisions dealing with ordinary travelling time and excess travelling time, there are sub clauses appearing beneath headings dealing with rest periods after domestic and international air travel, rest periods after the performance of air security officer on-flight duty, and an excess travel provision where an employee is required to stay away from their residence for 30 nights or more for operative reasons. In this application, only the ordinary travelling time and excess travelling time sub clauses require specific consideration. However, the remaining sub clauses are relevant contextual indicators as to the disadvantage that clause 64 of the Agreement is intended to remedy.
As a matter of principle, the language of the Agreement is to be read as a whole and in context.[43] Sub clauses 64(1), 64(2) and 64(3) appear immediately under the title of the clause rather than within one of the six sub clauses. Sub clause 64(1) provides that the Respondent will “meet all approved costs” associated with employment related travel requirements. Sub clauses 64(2) and 64(3) each address occasions when “this section” or the “employment related travel provisions” do not apply. By sub clause 64(2), the provisions of “this section” will cease to apply when an employee “on approved employment related travel is required to immediately return to duty.” Under sub clause 64(3), where an employee is performing operational duty and is in control of their employer-issued controlled items “they will be considered to be on duty and employment related travel provisions do not apply.” Having regard to both their location within the provision and their terms, we consider that sub clauses 64(1), 64(2) and 64(3) have general application to clause 64 as a whole.
It follows that clause 64 applies within the limits of two conditions, which are addressed in sub clauses 64(1), 64(2) and 64(3). First, the employee must be “on approved employment related travel.” Second, the employee must not be “on duty.” Sub clause 64(3) explains that an employee will be “on duty” if the employee is performing operational duty and is in control of their employer-issued controlled items. Absent satisfaction of these two conditions, no entitlement can arise to the payment of all approved costs within the terms of sub clause 64(1).
The first condition at [34] above requires determination of whether the employee is “on approved employment related travel.” Consideration of this matter is not to be undertaken in a vacuum or in the abstract. An analysis of whether a person is on “approved employment related travel” at any time can only be made by reference to the circumstances pertaining to the relevant employee. Relevant to this application, the Appellant’s case is that sub clause 64(4)
“ordinary travelling time” and sub clause 64(6) “excess travelling time” are relevant. Accordingly, we focus our attention on these sub clauses to determine if the Appellant was on approved employment related travel at the relevant times.
Sub clause 64(4) of the Agreement provides that an employee “who is required to undertake travel for work related reasons travelling away from their usual place of work to an alternative location” will have the time spent in travel count towards their “Normal Working Hours.” The time spent in travel must fall within either the hours of 0600 to 2000 Monday to Friday, or within the employee’s normal attendance pattern when working pursuant to a “Rostered Operations” working pattern (sub clause 64(4)(a) and (b)).
Where the work related travel involves travel away from the employee’s usual place of work to an alternative location and the travel is “outside of the timeframes in sub-section (4)” or occurs on a designated public holiday, the provisions of sub clause 64(6) of the Agreement (excess travelling time) apply. These terms generally provide that an employee will be paid an additional base salary hourly rate for excess time spent in travel if the entire period of travel exceeds 30 minutes on any calendar day. The terms of sub clause 64(6) do not count towards the employee’s “Normal Working Hours.”
In order to give operative meaning to these provisions, the Commissioner was permitted to consider the context within which the Agreement operated, including the nature of the Respondent’s undertaking in which the Appellant performed work. This is part of the industrial context in which the Agreement and the disputed term is to be understood[44] and part of the industrial reality in which the Agreement operates.[45]
The evidence before the Commissioner included that the Appellant, as a surveillance team member:
(a)performed surveillance duties across South East Queensland, primarily in the Brisbane and Gold Coast regions;
(b)did not have a fixed place of work, due to the nature of surveillance duties;
(c)was required to travel each day from their home to the designated target location;
(d)attended Brisbane Airport on an ad hoc basis to perform administrative duties, but their shifts did not commence or finish from the Brisbane Airport; and
(e)only attended the Respondent’s North Command Brisbane Airport office approximately once per fortnight.
As earlier stated, the Commissioner determined that the Appellant’s “usual place of work” was not the Brisbane Airport office. Rather, the Commissioner concluded that the performance by the Appellant of work within the Brisbane or Gold Coast region could properly be described as the Appellant’s usual place of work under the arrangements within the Northern Command under the Agreement. We are satisfied that there was an appropriate evidentiary foundation for this factual finding having regard to the matters at [39] above.[46] We do not accept the Appellant’s contention that the Brisbane Airport office was the “usual place of work” in circumstances where the Appellant was not required to attend that location in the performance of their duties and rather was permitted by the Respondent to travel directly from their place of residence to the designated target location each shift. The Appellant’s fortnightly attendance at the Brisbane Airport office does not persuade us otherwise. Nor does our view change having regard to the fact that the Brisbane Airport office is used as the commencement point for calculating travel time for the purposes of the benefit in the Northern Command Surveillance Travel Time Principles.[47] This is because it is the Appellant’s circumstances that are relevant to the determination of their usual place of work. Put simply, the Appellant did not usually perform work at the Brisbane Airport office.
This finding had a significant bearing upon the application. This is because sub clauses 64(4) and 64(6) of the Agreement apply only to an employee “required” to undertake travel for “work related reasons” away from their “usual place of work.” As the disputed travel did not involve the Appellant travelling away from their “usual place of work” then sub clauses 64(4) and 64(6) could not apply. The Commissioner was correct to determine that the disputed travel was not “caught”[48] by sub clauses 64(4) or 64(6) of the Agreement.
In the absence of either of sub clause 64(4) or 64(6) applying to the disputed travel, the Appellant could not be regarded as being “on approved employment related travel” for the purposes of sub clause 64(2) of the Agreement. The first condition set out at [34] above is therefore not satisfied. It is to be recalled that absent satisfaction of each of the two conditions at [34], no entitlement to the payment of all approved costs within the terms of clause 64(1) arises. It follows that it is strictly unnecessary for us to consider the second condition, being whether the Appellant was “on duty” at the relevant time.
We understand that the Appellant takes an alternative construction of clause 64 of the Agreement. The Appellant’s position both at first instance and on appeal is effectively that sub clause 64(3) is an operative provision of the Agreement which determines when an employee is or is not on “operational duty” or performing work that forms part of their Normal Working Hours. The Appellant contends that sub clause 64(3) is triggered simply by the performance of the duties set out at [16] above, while in control of the accoutrements necessary to carry out those duties.
We disagree. The purpose of sub clause 64(3) of the Agreement is to set out the circumstances in which the employment travel provisions of clause 64 will not apply. That is, sub clause 64(3) establishes when an employee is “on duty” for the purposes of the second of the two conditions set out at [34] of this decision.
Accordingly, it is apparent as a matter of interpretation that sub clause 64(3) does not operate in the manner contended by the Appellant. Even if the Appellant’s construction were to be preferred (which we do not accept), the evidence does not establish that the Appellant was on operational duty or performing work that forms part of their Normal Working Hours simply by the performance of the duties at [16] above, while in control of the accoutrements. Rather, the Appellant was on duty from the point at which the rostered shift commenced (or otherwise when they were directed to commence duty by their supervisor within the meaning of sub clause 16(7) of the Agreement).[49] A surveillance team member’s period of operational duty comprises of the team member’s shift, inclusive of the 30 minute or 60 minute travel time.[50] This 30 minute or 60 minute travel time therefore counts towards the surveillance team member’s Normal Hours of Work in accordance with the Operations Working Pattern.[51] This is also what the Commissioner found, namely that the Appellant was not otherwise “on duty” from the point at which they commenced travel to work.[52]
The activities relied upon by the Appellant at [16] above are remunerated by receipt of the 22% core composite allowance.[53] We do not consider that such an arrangement contravenes sub clause 18(5) of the Agreement as contended by the Appellant in the hearing before us.[54] The composite allowance is not paid for the purposes of remunerating additional hours of attendance but rather for the purposes of recognising the flexibilities required where commencing work at different designated target locations each shift.
Against this context, we turn now to consider the appeal grounds as framed in the Notice of Appeal.
Appeal grounds (1) and (2)
Appeal grounds (1) and (2) can be readily dispensed with. The terms contained within enterprise agreements applying to other organisations bear no relevance to the present dispute or the correctness of the decision under appeal. As to ground (2), we do not accept that the Respondent filed material outside of the compliance dates contained in the Commission’s directions. The correspondence in question was responsive to an enquiry made by the Commissioner’s Chambers and raised an additional matter whilst acknowledging that “evidence and submissions are closed.”[55] The Appellant provided responsive views urging the Commissioner not to take the additional submission into consideration and the decision demonstrates that the Commissioner did not. Paragraphs [47] to [49] of the decision set out the Respondent’s submissions on the issue, which were taken from submissions it filed on 21 July 2023, well prior to the directions closing.[56] Appeal grounds (1) and (2) disclose no error and we reject them.
Appeal grounds (3) and (5)
Appeal ground (3) concerns the three questions posed for arbitration by the Respondent, which the Appellant submits are misleading. In oral submissions before us, the Appellant contended that the first question for arbitration ought to have been the following, with similar changes made to questions 2 and 3:[57]
“Does clause 64(3) operate to create an entitlement for AFP members’ operational duty commencing from their home address to the workplace and return be considered duty towards Normal Working Hours?”
Three matters arise from this submission. First, the Appellant did not raise with the Commissioner any concerns with the questions posed for determination by the Respondent, despite filing extensive reply submissions.[58]
Second, the alternative form of question posed by the Appellant before us does not alter the nature of the enquiry to be conducted in the determination of the dispute. The Appellant’s preferred question replaces the words “travel time” with the phrase “operational duty” and makes no other material changes to the question. On either formulation of the question, the Appellant had the opportunity to advance submissions in relation to whether the time spent travelling between home and the designated target location was operational duty or employment related travel. The Appellant appeared to accept this proposition in the hearing of the appeal before us.[59]
Third, the Appellant’s submission fails to take into consideration that the Commissioner turned his mind to the questions and determined that the proposed by the Respondent were “appropriate to determine the dispute.”[60] In the circumstances described, we agree with the Commissioner’s conclusion in this respect.
Accordingly, to the extent that appeal ground (3) challenges the Commissioner’s determination that he was satisfied that the questions posed by the Respondent were adequate for the determination of the dispute before him, it is rejected. The assertion that the Respondent’s questions otherwise misled the Commissioner is therefore not arguable. As to the second part of appeal ground (3), the contention that the decision summarises more of the Respondent’s submissions than the Appellant’s raises no error requiring appellate intervention.
Appeal ground (5) is related as it is also critical of the first question for arbitration. By this ground, the Appellant says that paragraph [62] of the decision fails to take into account that operational duty is being performed during travel time to and from home to the designated target location. Paragraph [62] of the decision simply recites the first question for arbitration, followed by the Commissioner’s answer to that question, “No.” Having regard to our conclusion in respect of ground (3) and in particular, the matters at [51] above, we do not accept that question (1) fails in the manner contended. It is also apparent from paragraph [58] of the decision that the Commissioner considered and rejected the Appellant’s argument that the commute to and from home each day was operational duty by operation of sub clause 64(3) of the Agreement. This informed the Commissioner’s conclusion at [62] of the decision. Ground (5) discloses no appealable error and cannot succeed.
Appeal ground (4)
By appeal ground (4), the Appellant contends that the Commissioner erred by failing to take into account evidence given by Commander Tanti as to the Respondent’s expectations of surveillance team members outside of rostered hours or while travelling to a target location.[61] The Appellant submitted before us that the decision contains “absolutely no reference” to Commander Tanti’s witness statement, and the Commissioner thereby failed to have regard to the fact that the tasks described by the Commander constituted operational duties and should be regarded as such.[62]
The decision does not specifically set out the content of Commander Tanti’s witness statement. Nor is this surprising in circumstances where a confidentiality order was (and remains) in place prohibiting or restricting from publication certain evidence of Commander Tanti as well as the content of certain documents in evidence before the Commission and the names of certain individuals. We accept that paragraphs [29] and [43]-[45] of Commander Tanti’s witness statement, which are the focus of this appeal ground, were not specifically caught by the confidentiality order. However, the mere fact that these matters were not expressly set out in the Commissioner’s reasons is not, of itself, a basis for concluding that the material has not been taken into account.[63] This is particularly so in circumstances where, upon recording that a confidentiality order had been issued in the matter, the Commissioner stated that “while certain material filed in this matter is not included in this decision, it has all been considered when reaching the conclusion regarding this dispute.” We are satisfied that this is the case. The matters raised by Commander Tanti at [29], [43] and [44] of his witness statement are adequately addressed in the decision at [46(c)] where the Commissioner refers to the pre commencement duties “expected of” surveillance team members which are to the “benefit of the member,” being terms utilised by Commander Tanti when referring to these activities.
It is therefore apparent that when the Commissioner rejected, at [58] of the decision, the Appellant’s contention that they were “on duty” from the point at which travel to the designated target location from home commenced, the Commissioner did so having regard to the “pre-commencement duties” expected by Commander Tanti. The Appellant has not established that this evidence was not taken into account. Appeal ground (4) fails.
Appeal grounds (6), (7) and (8)
Appeal grounds (6), (7) and (8) each broadly contend that the Commissioner erred by acting upon a wrong principle or mistaking the facts. We consider each of these contentions in turn.
Ground (6) contends that the Commissioner erred at [58] of the decision when expressing satisfaction that the “Operations working pattern affording 30 minutes or 60 minutes paid time depending on the location of the work, is intended to operate in the manner as submitted by the Respondent.” The Appellant contends that the Operational Working Pattern in the Agreement does not mention of the 30 minute or 60 minute travel time attributed to arrival at target locations.
As earlier stated at [30] of this decision, it is accepted that the 30 minute or 60 minute travel time benefit is not a term of the Agreement. The evidence was that this time is treated by the Respondent as operational duty, counting towards the surveillance team member’s Normal Hours of Work as part of the Operations Working Pattern pursuant to a separate policy document, the Northern Command Surveillance Travel Time Principles.[64]
Contrary to the contention made by ground (6), paragraph [58] of the decision does not conclude that the 30 minute or 60 minute travel time benefit is contained in the Agreement. The decision merely records the application of the Northern Command Surveillance Travel Time Principles to surveillance team members.
The Commissioner’s reference to the Operations Working Pattern is to the arrangement for work set out in clause 23 of the Agreement. This term recognises, at clause 23(1), that there is a need for such team members to demonstrate flexibility in hours and patterns of attendance on a 24 hour, seven day a week basis. The evidence was that this working pattern underscores the basis for applying the supplementary benefits to surveillance team members in the Northern Command Surveillance Travel Time Principles. The Commissioner did not mistake the facts in relation to this issue at [58] of the decision, or at all, and no error of principle arises.
Ground (7) contends that the Commissioner erred when determining at [59] of the decision that the disputed travel constitutes “local travel” and is therefore not caught by clauses 64(4) or 64(6). Further, the Appellant contends that the Commissioner erred in determining that work within the Brisbane or Gold Coast area could properly be described as the Appellant’s “usual place of work” and that the “usual place of work” was not limited to the Brisbane Airport office.
In support of this ground, the Appellant relies on the length of a journey from Brisbane Airport to Burleigh Heads, being 90 kilometres; the fact that the Agreement does not define “usual place of work”; and the evidence of Commander Tanti that surveillance team members “report out of” the Brisbane Airport premises.[65] In the hearing before us, the Appellant further submitted that none of the work locations were “usual,” and that surveillance team members stored equipment at the Brisbane Airport office and attended administration days at that location.[66]
Noting our conclusion at [40]-[41] above, it is apparent that as a matter of principle and on the evidence that the Appellant’s “usual place of work” was not a single office location. Nor was the Appellant required to attend the Brisbane Airport office prior to travelling to the designated target location at the commencement of each shift. As earlier stated, we are satisfied that the finding made by the Commissioner that the Brisbane Airport was not the Appellant’s “usual place of work” was based on a proper construction of clause 64 and supported by the evidence. In this respect, we further note that the Appellant’s reliance on Commander Tanti’s statement that surveillance team members “report out of” the Brisbane Airport office ignores the balance of that aspect of the Commander’s evidence, which proceeds by stating, “[h]owever, as I set out in more detail below, they do not regularly work from these premises given the inherent nature of their surveillance duties.”[67]
Appeal ground (8) contends that there is a contradiction between paragraphs [44] and [46] of the decision. At the outset, we note that these paragraphs of the decision do not form part of the Commissioner’s dispositive reasons. Rather, they are a recitation of the Respondent’s submissions in the proceedings at first instance. No appealable error arises from the Commissioner’s summary of the evidence before him.
We observe that in any event, the contention is misconceived. At [44] of the decision, the Commissioner records that surveillance team members are not expected to perform any pre-commencement activities “that would render private travel prior to their shift commencing” operational duty. At [46(c)] of the decision, the Commissioner notes that the pre-commencement activities that are expected of surveillance team members are to the member’s benefit and are remunerated by the 22% core composite. These propositions are not contradictory. Rather, it is recognised that the “pre commencement duties” as expected of surveillance team members are activities that are appropriately remunerated by the core composite allowance; but their performance does not, of itself, mean that the team member is performing operational duty prior to the commencement of their shift (remembering that such shift is inclusive of the 30 minute or 60 minute travel time).[68]
For the reasons given, appeal grounds (6), (7) and (8) fail.
Appeal grounds (9), (10) and (11)
Appeal grounds (9) and (11) are each rejected on the basis that they do not purport to identify any error in the decision. Ground (9) raises concerns with the Respondent’s alleged failure to respond to an enquiry made by the Appellant about the disputed clause. Ground (11) identifies provisions of Commander Tanti’s witness statement with which the Appellant does not agree. No connection is drawn to any aspect of the Commissioner’s dispositive reasons or conclusions by either of these grounds.
The statement made by appeal ground (10) is not an independent ground of appeal. It is simply an assertion that is not otherwise addressed in the Appellant’s written submissions, and which does not identify error in the decision under appeal. Ground (10) also fails.
Permission to appeal
At issue in this appeal is whether the Commissioner reached the correct result. In our view, the Commissioner did. None of the appeal grounds advanced by the Appellant disclose appealable error and, in the circumstances, we are not persuaded to grant permission to appeal in the public interest nor on discretionary grounds. The appeal does not raise issues of importance and general application and there is no diversity of opinion on the approach to be adopted such that appellate intervention is required. We do not consider that the decision manifests an injustice, or that the result is counter intuitive. Nor are the legal principles applied disharmonious when compared with other recent decisions dealing with similar matters.[69]
Order and disposition
Permission to appeal is refused.
VICE PRESIDENT
Appearances:
Appellant, on their own behalf
P McNulty of Ashurst, for the Respondent
Hearing details:
2024.
Location redacted:
Date redacted.
[1] [2018] FWCA 2776; AE428393
[2] PR771788
[3] Appeal Book 5 at 2.1
[4] Appeal Book 8 at 2.5; Appeal Book 16-17
[5] Appeal Book 1-18
[6] Decision at [2]
[7] Decision at [8]
[8] Decision at [10]
[9] Decision at [8], [10], [54]
[10] Decision at [11], [55], [56]
[11] Decision at [6]-[7]
[12] Decision at [13], [26], [36]-[45]
[13] Decision at [12], [14]-[15], [31]-[35]
[14] Appellant’s outline of submissions addressing permission to appeal and the merits of the appeal filed on 22 December 2023
[15] Ibid at p.3-4 at [1]
[16] Ibid at p.4 at [2]
[17] Ibid at p.4 at [3]
[18] Ibid at p.5-6 at [4]
[19] Ibid at p.6 at [5]
[20] Ibid at p.6-7 at [6]
[21] Ibid at p.7 at [7]
[22] Ibid at p.8-9
[23] Ibid at p.8-9
[24] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [48]-[49] and [150]-[154]; 264 CLR 541 at 563, 591-593
[25] [1936] 55 CLR 499 at [505]
[26] See “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Programmed Industrial Maintenance Pty Ltd[2021] FWCFB 3456 at [36]
[27] Rail Commissioner vRogers[2021] FWCFB 371 at [61]
[28] See for example James Cook University v Ridd [2020] FCAFC 123, 298 IR 50 at [65] per Griffiths and SC Derrington JJ; WorkPac Pty Ltd v Skene [2018] FCAFC 131 264 FCR 536 at [197] and the authorities referred to therein
[29] Appeal Book 43 at [13]
[30] Appeal Book 43 at [14]
[31] Appeal Book 42 at [4]-[5]
[32] Appeal Book 43 at [11], Appeal Book 44 at [20]
[33] Appeal Book 44 at [18]
[34] Appeal Book 44 at [19]
[35] Appeal Book 44 at [21]
[36] Appeal Book 44 at [23], [25]
[37] Appeal Book 44 at [30]
[38] Appeal Book 47 at [43], [44]
[39] Appeal Book 47 at [46]
[40] Appeal Book 46-47 at [39]
[41] Appeal Book 46-47 at [38]-[39] and Appeal Book 127-130
[42] Appeal Book 48 at [49]-[50]
[43] See, City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at [43] citing Australian Timber Workers Union v W. Angliss & Co Pty Ltd (1924) 19 CAR 172
[44] Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2]
[45] City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at [43]
[46] It is well established that an appellate body will not interfere with the factual findings of a trial decision-maker unless it is concluded that a finding cannot stand because it was contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable, or contrary to compelling inferences: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [27] – [29]
[47] Appeal Book 46-47 at [38]-[39] and Appeal Book 127-130
[48] Decision at [59]
[49] Appeal Book 47 at [48]
[50] Appeal Book 48 at [49]
[51] Appeal Book 46-47 at [39]
[52] Decision at [58]
[53] Appeal Book 47 at [46]
[54] Transcript of proceedings dated 16 February 2024 (Transcript) at PN103-PN107
[55] Appeal Book 152-155
[56] Appeal Book 25 at [40]-[43]
[57] Transcript at PN72
[58] Appeal Book 141-149
[59] Transcript at PN95-PN97
[60] Decision at [7]
[61] Appeal Book 47 at [43]-[45]. At the appeal hearing, the Appellant also relied on Appeal Book 45 at [29] (see Transcript PN201-PN202)
[62] Transcript at [129], [134]-[135]
[63] Soliman v University of Technology, Sydney [2012] FCAFC 146 at [54] citing Blue Wedges Inc v Minister for Environment, Heritage and the Arts [2008] FCA 399 at [123], 167 FCR 463 at 492 per North J; Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157; 240 IR 178 at [47]-[49]
[64] Appeal Book 46-47 at [39] and Appeal Book 127-130
[65] Appeal Book 43 at [11]
[66] Transcript at PN214
[67] Ibid
[68] Appeal Book 47-48 at [48]-[49]
[69] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27]
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