The Victorian Fisheries Authority v Community and Public Sector Union

[2024] FWC 2764

[2024] FWC 2764

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

The Victorian Fisheries Authority
v

Community and Public Sector Union

(C2024/6845)

DEPUTY PRESIDENT COLMAN MELBOURNE, 3 OCTOBER 2024

Application for a stay under s 606 – application granted

1. The Victorian Fisheries Authority (VFA) has applied for a stay under s 606 of the Fair Work Act 2009 (the Act) in connection with an appeal it has lodged against a decision of Deputy President O’Neill made on 6 September 2024 ([2024] FWC 2417) which determined a dispute that had been referred to the Commission under s 739 of the Act and the dispute resolution procedure in the Victorian Public Sector Enterprise Agreement 2020 (Agreement). The dispute concerned a claim brought by the Community and Public Sector Union (CPSU) on behalf of its members, Ben Amey and Daniel Steel, for reasonable relocation expenses under clause 19.7 of the Agreement. Mr Amey and Mr Steel had submitted expressions of interest (EOIs) for vacant positions that were remote from their workstations. Their EOIs were accepted. Mr Amey and Mr Steel took up the roles in the new locations and claimed relocation expenses. The VFA refused the applications on the grounds that the requirements of clause 19.7 had not been met.

1. Clause 19.7 of the Agreement states:

“19.7 Permanent relocation of the usual place of work requiring residential relocation

(a)   Residential Relocation principles

If the Employer considers that it is reasonable and necessary for an Employee to move residence as a result of relocation from one work location to another, and the relocation arises from promotion or transfer as a result of an advertised vacancy, or redeployment, the Employee will be entitled to:

(i)up to three days’ paid leave associated with the relocation; and

(ii)reimbursement of reasonable expenses associated with the relocation as per clause 19.7(b).

(b)   Reasonable relocation expenses

Relocation expenses include reasonable expenses directly incurred by the Employee and their family as a result of:

(i)the journey to the new location, including meals and accommodation;

(ii)removal, storage and insurance; and

(iii)selling and purchasing of a comparable residence.”

1. Before the Deputy President, the CPSU contended that Mr Amey and Mr Steel had met the requirements of clause 19.7(a) and that they should therefore be entitled to the reasonable relocation expenses prescribed by clause 19.7(b). The VFA contended that, although it was ‘reasonable and necessary’ for the two employees to move residence, the relocation did not arise from promotion or transfer ‘as a result of an advertised vacancy or redeployment’. It said that the positions in question had not been advertised, but instead had been the subject of an internal request for EOIs. The Deputy President did not agree. She considered that the VFA’s distinction between internal and external advertisements was one without substance, and that there was no reason why the VFA’s internal request for EOIs should not be regarded as an advertisement for the purposes of clause 19.7. The Deputy President concluded that the requirements of clause 19.7(a) had been met, and that in the case of Mr Steel, but not of Mr Amey, the claimed relocation expenses were reasonable.

1. At the stay hearing, the VFA contended that the Deputy President reached the wrong conclusions to the questions that were referred for determination. It submitted that the request for EOIs did not constitute an advertisement, and that the precondition in clause 19.7(a) for the payment of relocation expenses under clause 19.7(b) was therefore not satisfied. The VFA further contended that the Deputy President erred in her construction of the words ‘reasonable relocation expenses’ in clause 19.7(b), and wrongly concluded that Mr Steel’s relocation expenses were reasonable despite not meeting the requirements of VFA policy. The VFA sought a stay of the Deputy President’s decision pending the determination of its appeal. The CPSU contended that the Deputy President’s decision was plainly correct and did not accept that there was an arguable case of error.

1. Before exercising the discretion to grant a stay under s 606, the Commission must be satisfied that the appellant has an arguable case, with some reasonable prospects of success. The balance of convenience must also weigh in favour of the decision being stayed.

1. At issue in this appeal is the meaning of clause 19.7 and its application to the facts. The questions that were posed for determination were whether the two employees’ relocations occurred ‘as a result of an advertised vacancy’ within the meaning of clause 19.7(a); and if so, whether their expenses were reasonable ones as contemplated by the clause. The correctness standard applies in relation to the first question, which can only have one correct answer, and to any constructional element that might bear on the second question. In my view, the appeal raises an arguable case, with some reasonable prospect of success, in respect of the Deputy President’s answer to the first question. The VFA has an arguable case, with some reasonable prospects of success, that an ‘advertised vacancy’ in clause 19.7(a) means one that has been put before the general public rather than just an internal audience.

1. As to the balance of convenience, not granting a stay would involve the inconvenience of the VFA having to seek to recoup the money from Mr Steel should its appeal succeed. On the other hand, the CPSU said that a stay would be unfair to Mr Steel because he should enjoy the fruits of his victory, and because a stay would mean that he would forego interest on a substantial sum ($49,941.33). At the hearing, the VFA undertook to pay interest on the sum of $49,941.33 in the event its appeal against the Deputy President’s decision was unsuccessful, at the rate of 4% per annum, calculated from today’s date until the date of the Full Bench decision. The CPSU accepted that this would substantially address the balance of convenience concerns of Mr Steel. In light of this undertaking, which will be reflected in the stay order, I am satisfied that the balance of convenience weighs in favour of the Commission staying the Deputy President’s decision.

1. For the above reasons, a stay order was issued a short time ago in PR779942. 

DEPUTY PRESIDENT

Appearances:

N. Harrington of counsel for the Victoria Fisheries Authority
A. Ansorge for the CPSU

Hearing details:

2024
Melbourne
4 October

Printed by authority of the Commonwealth Government Printer

<PR779941>