Thomson v Commonwealth of Australia

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.