Thomson v Commonwealth of Australia

[2013] FCCA 2168

FEDERAL CIRCUIT COURT OF AUSTRALIA

THOMSON v COMMONWEALTH OF AUSTRALIA [2013] FCCA 2168

Catchwords:
INDUSTRIAL LAW – Small claim – claim for monetary compensation – interpretation of Australian Federal Police Collective Agreement 2007-2011.

Legislation:

Fair Work Act 2009, ss.323, 539, 545, 547

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, item 2 of sch.3
Australian Federal Police Act 1979, s.23

Applicant: BRENDAN THOMSON

Respondent: COMMONWEALTH OF AUSTRALIA

File Number: SYG 1969 of 2013

Judgment of: Judge Cameron

Hearing date: 9 December 2013

Date of Last Submission: 9 December 2013

Delivered at: Sydney

Delivered on: 9 December 2013

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondent: Australian Federal Police

ORDERS

1. The respondent pay the applicant compensation in accordance with the Australian Federal Police Collective Agreement 2007-2011 for the periods in respect of which he was on-call while on deployment to Christmas Island in 2010.

2. The respondent pay interest on such amounts.

3. Within 14 days the parties submit short minutes quantifying the amounts calculated in respect of orders 1 and 2.

4. The parties have liberty to apply.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1969 of 2013

BRENDAN THOMSON

Applicant

And

COMMONWEALTH OF AUSTRALIA

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, Mr Thomson, is a sergeant of police employed by the Australian Federal Police (“AFP”). Mr Thomson alleged that he was not paid the entirety of the entitlements he said were due to him arising out of two temporary deployments to Christmas Island undertaken by him in 2010. Mr Thomson alleged that the claimed failure to pay his full entitlements was a breach of the Australian Federal Police Collective Agreement 2007-2011 (“Collective Agreement”) and a breach of s.323(1)(c) of the Fair Work Act 2009 (“FWA”). He sought compensation pursuant to s.545 of the FWA, together with interest on that amount pursuant to s.547 of the FWA. Initially Mr Thomson also sought the imposition of a pecuniary penalty for the AFP’s failure to comply with the FWA but withdrew that claim in the interests of maintaining this matter as a small claim.

2. The Commonwealth disputed Mr Thomson’s claim, alleging that he had been paid a “restricted duty premium” for his time on Christmas Island and that the Collective Agreement prevented him from receiving both that payment and the on-call allowance.

Collective Agreement

1. The Collective Agreement relevantly provided:

   23.ON CALL

   141.Employees classified up to and including Band 8 may have access to an on call allowance consistent with this clause.

   142.Where an employee is required and directed, prior to ceasing duty, to be contactable and available to return to duty the employee will be entitled to be paid an on-call allowance for each period of up to 24 hours (or part thereof) of:

   a)      $25 – Monday to Friday;

   b)      $35 – Saturday and Sunday;

   c)       $50 – Public Holidays.

   143.Employees will normally have a maximum on-call period of 7 days in 28 days.  Where an employee is required to work in excess of 7 days on call in a 28-day period, they will be paid the following on call allowance for the additional days:

   a)      $35 – Monday to Friday;

   b)      $50 – Saturday and Sunday;

   c)       $50 – Public Holidays.

   144.An employee may refuse to be placed on call for a period in excess of 7 days in a 28-day period.

   145.To be eligible to claim recall to duty, whilst directed or rostered to be on-call an employee must demonstrate that:

   a)they were required to perform work on behalf of the AFP; and

   b)such work is recorded in the relevant time recording system; and

   c)the minimum amount of time required of them in relation to the recall to duty was thirty (30) minutes.

   24.RESTRICTED DUTY PREMIUM

   146.Employee [sic] classified up to and including Band 8 may have access to a restricted duty premium consistent with this clause.

   147.Where an employee is required by a direction from a National Manager:

   a)to remain in attendance at a place of duty outside of their normal working hours until recalled or required to perform a duty; and

   b)only has available basic accommodation and amenities for sleeping; and

   c)      the attendance is overnight.

   148.A restricted duty premium of $100.00 will be paid for each complete 24-hour period involved in the deployment.

   149.Where an employee is deployed in these circumstances, the time credited toward the hours worked by the employee will be a minimum of eight (8) hours or the actual time they are required to perform duty (whichever is the greater) for each 24-hour period they are on deployment.

   150.Restricted duty is characterised by no choice over such issues as personal comfort, diet and access to entertainment.

   151.Where an employee receives another form of compensation provided elsewhere in this Agreement for such deployment, they will not be entitled to receive this premium.

2. A sergeant was classified as a band 6 or a band 7 employee.  Mr Thomson alleged that during his deployments to Christmas Island he was employed at band 6.

Relevant legislation

1. Upon the repeal of the Workplace Relations Act 1996 (“WRA”) and the commencement of the FWA, the Collective Agreement became a transitional instrument governed by item 2 of sch.3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“FW(TPCA) Act”). Item 2(1) of sch.3 to the FW(TPCA) Act provides that such transitional instruments are to continue in existence in accordance with that schedule despite the repeal of the WRA.

2. Section 323 of the FWA relevantly provides:

   323  Method and frequency of payment

   (1)An employer must pay an employee amounts payable to the employee in relation to the performance of work:

   (a)     in full (except as provided by section 324); and

   (b)in money by one, or a combination, of the methods referred to in subsection (2); and

   (c)     at least monthly. …

3. The combined effect of item 10 of the table in s.539(2) of the FWA and s.545(2)(b) of the FWA is that the Court may award compensation for loss suffered because of a contravention of s.323(1) of the FWA.

4. Section 23 of the Australian Federal Police Act 1979 provides that the Commissioner of the AFP, on behalf of the Commonwealth, has all the rights, duties and powers of an employer in respect of AFP employees.

Evidence

1. In his affidavit sworn on 28 August 2013, Mr Thomson deposed that:

   a)as a member of the AFP’s Operational Response Group (“ORG”) he was deployed to Christmas Island for approximately twelve days in June 2010 and again from 1 July 2010 to 9 November 2010;

   b)during those times he was provided with an AFP telephone and directed by the AFP Commanding Officer on Christmas Island to be contactable at all times and to be “on-call”;

   c)in August 2010 the ORG commander, amongst other things, directed that all ORG members deployed to Christmas Island were to abstain from consuming alcohol whilst on deployment there;

   d)during his second deployment to Christmas Island he was recalled to duties on several occasions and he gave examples of such occasions; and

   e)he was paid the on-call allowance during June 2010 but the amount he received was later deducted from his wages.  He did not receive the on-call allowance for his second deployment to Christmas Island.

Consideration

1. I find that the on-call allowance and the restricted duty premium were different things such that payment of one did not preclude payment of the other.  The on-call allowance was not restricted in terms of time or location and could be payable for any period in respect of which an AFP employee was required and directed, prior to ceasing duty, to be contactable and available to return to duty.  In broad terms, the restricted duty premium was concerned with situations where an AFP employee was required to be away from home overnight and where accommodation and sleeping arrangements were “basic”.  The Collective Agreement described it as a “deployment” and characterised it as a situation where the AFP employee had no choice over personal comfort, diet and access to entertainment. 

2. Nothing in the section of the Collective Agreement dealing with the restricted duty premium suggests that it was payable for being available for duty at any particular time.  It was a payment for being away from home overnight and living in “basic” conditions.  The on-call allowance, on the other hand, was payable for being available to return to duty if required, not for being away from home overnight and living in basic conditions.  Specifically, even if it might have been payable because of the nature of a deployment, it was not a payment for being on deployment.  Consequently, an entitlement to it, at least in Mr Thomson’s case, did not prevent payment of the restricted duty premium. 

3. In reaching these conclusions I have not overlooked the Commonwealth’s submission that an AFP employee could be compensated under the restricted duties premium by being treated as having worked for eight hours when no work was actually performed and that the on-call allowance ought not be applicable in such circumstances.  While recognising that a person might be entitled to be paid both allowances in respect of the same period of time, that does not alter the basis on which an AFP employee was entitled to be paid the Collective Agreement’s restricted duties premium, namely the circumstances in which he or she was required to live in order to discharge his or her duties, or the basis on which the on-call allowance would be payable, namely having to be contactable and available to respond for duty forthwith.

4. I accept Mr Thomson’s evidence and find that the direction that he abstain from consuming alcohol whilst on deployment to Christmas Island corroborated his statement that he had been directed to be on call for the duration of his deployments.  I also find, as conceded by the Commonwealth, that while on deployment to Christmas Island Mr Thomson did not exercise his right under the Collective Agreement to refuse to be placed on call.  I find in those circumstances that Mr Thomson met the criteria for the payment of the on-call allowance for the periods he was deployed to Christmas Island as identified in his affidavit and that he is entitled to monetary compensation in an amount calculated in accordance with the Collective Agreement.  He is also entitled to interest on that amount.  For the reasons already given, the entitlement to the on-call allowance does not affect Mr Thomson’s entitlement to the restricted duty premium for his time on Christmas Island.

5. As to the calculation of the compensation and interest, I direct the parties to confer and bring in a short minute quantifying the amounts in question within fourteen days.  In the event that agreement cannot be reached in that period I grant the parties liberty to apply.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 16 December 2013