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

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.
The respondent pay interest on such amounts.
Within 14 days the parties submit short minutes quantifying the amounts calculated in respect of orders 1 and 2.
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

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.
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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FCCA 2168
Decision Date

CaseChat Overview and Summary

In *Thomson v Commonwealth of Australia* [2013] FCCA 2168, the Federal Circuit Court of Australia considered a small claim brought by Sergeant Brendan Thomson against the Commonwealth of Australia. Sergeant Thomson alleged that he had not been paid the full entitlements due to him under the Australian Federal Police Collective Agreement 2007-2011 for periods he was on temporary deployment to Christmas Island in 2010. He claimed this failure to pay constituted a breach of the Collective Agreement and section 323(1)(c) of the *Fair Work Act 2009* (Cth), seeking compensation and interest. The Commonwealth disputed the claim, arguing that Sergeant Thomson had been paid a "restricted duty premium" and that the Collective Agreement precluded him from receiving both this payment and an on-call allowance.

The central legal issue before the Court was the interpretation of the Australian Federal Police Collective Agreement 2007-2011, specifically whether an employee could receive both an on-call allowance and a restricted duty premium for the same period of deployment. The Court was required to determine if these two forms of compensation were mutually exclusive or if they could be claimed concurrently under the terms of the agreement and relevant legislation. This involved an analysis of the specific clauses within the Collective Agreement relating to both the on-call allowance and the restricted duty premium, as well as the application of the *Fair Work Act 2009* (Cth) concerning payment of entitlements.

Judge Cameron reasoned that the on-call allowance and the restricted duty premium were distinct entitlements with different bases for payment. The on-call allowance was payable for being contactable and available to return to duty, irrespective of location, whereas the restricted duty premium was for deployments involving overnight stays with basic accommodation and limited personal comfort. The Court found that the Collective Agreement did not prohibit an employee from receiving both payments for the same period, as the conditions for each were separate. Sergeant Thomson's evidence, including a direction to abstain from alcohol during his deployment, corroborated his claim of being directed to be on-call. The Court accepted that Sergeant Thomson met the criteria for the on-call allowance and was entitled to compensation and interest.

The Court ordered that the Commonwealth pay Sergeant Thomson compensation in accordance with the Collective Agreement for the periods he was on-call while deployed to Christmas Island, along with interest on that amount. The parties were directed to submit short minutes within 14 days to quantify the amounts payable under these orders, with liberty to apply if agreement could not be reached.

Orders