United Firefighters' Union of Australia v Country Fire Authority
[2012] FWA 5005
•12 JUNE 2012
[2012] FWA 5005 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
United Firefighters' Union of Australia
v
Country Fire Authority
(C2011/1149)
COMMISSIONER ROE | MELBOURNE, 12 JUNE 2012 |
Alleged dispute regarding vehicle expense allowance. Clause 19 - Dispute Resolution of the Country Fire Authority (CFA), United Firefighters’ Union of Australia Operational Staff Agreement 2010.
[1] The United Firefighters’ Union of Australia (UFU) made an application under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with a dispute settlement procedure. The dispute is pursuant to the Country Fire Authority (CFA), United Firefighters’ Union of Australia Operational Staff Agreement 2010 (the Agreement). The Agreement was approved under the Fair Work Act 2009 (the Act). The employer covered by the Agreement is the Country Fire Authority (CFA).
[2] The dispute was subject to a number of conciliation conferences. Arising from those conferences on 24 April 2012 I made the following statement as part of Directions in this matter.
“The CFA and the UFU have agreed that the dispute concerning the payment of vehicle expense allowance to Leading Firefighter Glessing pursuant to Clause 38.8.5 be determined by a recommendation by Fair Work Australia. Both parties have agreed to abide by the recommendation on the basis that the recommendation will only relate to the specific circumstances surrounding the Glessing matter and is specifically limited to that matter and it is without prejudice and not to be used as a precedent.”
[3] Given that there had been extensive conferences and that I was familiar with the background to the matter the parties agreed that I should determine the matter based upon written submissions which were provided by the parties. I have considered the submissions in making this recommendation.
[4] The relevant provisions of the Agreement are as follows:
“38.4. Personal expenses and accommodation
38.4.1. Procedures for and the amount of personal expenses relating to travel, accommodation and personal expenses for employees covered by this agreement are contained in the Personal Expenses and Accommodation Agreement 2010 at Schedule 4.
38.4.2. Where reasonable receipted expenditure exceeds the amount specified the receipted amounts will be reimbursed.
....
38.8. Attendance at training facilities
38.8.5. Where an employee is required to attend training they shall be reimbursed the cost of reasonable transport. This provision shall not apply where the employer provides reasonable transport.
SCHEDULE 4 – ALLOWANCES, PERSONAL EXPENSES AND ACCOMMODATION
..........
2.1 This agreement sets out the procedures relating to accommodation and personal expenses and for employees covered under the terms of the award and the Country Fire Authority/United Firefighters Union of Australia Operational Staff Enterprise Agreement 2010, when required to work away from their normal work location as authorised by the Country Fire Authority.
2.2 The Authority will reimburse an employee for actual and reasonable out of pocket expenses incurred by the employee in the course of his or her authorised Duties.
2.3 An expense will be deemed necessary if it was incurred in the course of an employee's authorised duties and would not have been incurred in the ordinary circumstances of travel to and from the employee's home and normal duty location.
2.4 Wherever practical, employees are required to obtain approval before incurring travel, personal and out of pocket expenses.
2.5 The Authorised Officer must ensure all expenses were required and reasonable in the circumstances.”
[5] It is not in dispute that Leading Fire Fighter Glessing was required to attend training at Fiskville from 23 to 25 November 2010 and is seeking reimbursement for a private transport cost of $435.60. It is not disputed that the amount of private transport cost has been calculated in accordance with the Agreement provisions. Approximately two weeks prior to the course, Leading Fire Fighter Glessing (DG) contacted Regional HQ and sought access to a CFA car for attending the training facility. It is not in dispute that this was the correct approach. DG was told that no car was available. DG then contacted other persons on the training course to see if cars could be shared or if he could car pool but this did not work out.
[6] DG received a notice concerning the arrangements for the training course which included the statement “transport is to be arranged either by your OIC or the Manager Training & Development of your Region.” The CFA say that there was a muster sheet issued at his station in January 2010 that instructed station employees to speak to the OIC before using a private vehicle. DGs name is ticked on that sheet indicating that he had seen the muster sheet. DG does not recall seeing the muster sheet or ticking it. DG also states that he was advised by his OIC to check whether CFA cars were available before using private vehicle for training and that the OIC did not say that he needed to speak with the OIC. The CFA say that DG was told that he needed to speak to the OIC before using a private vehicle.
[7] The CFA argue that the provision of Schedule 4 Clause 2.5 makes it clear that approval is required from the Authorised Officer before incurring travel costs. The CFA argues that the Authorised Officer is the OIC.
[8] The UFU argue that Schedule 4 Clause 2.5 is about the process of approving a claim for reimbursement after the expense has been incurred and the form seeking reimbursement has been submitted.
[9] Regardless, the CFA argue that DG did not seek approval prior to incurring travel costs which is why he has not been reimbursed. The CFA argue that there is no evidence of any practical difficulty preventing DG from seeking prior approval.
[10] The UFU argue that DG did, in accordance with Clause 38.8.5, check whether or not the employer was able to provide reasonable transport and having established that this was not possible, DG is entitled to reimbursement under that Clause. The UFU argue that there are no consistent policies and procedures concerning how prior approval is granted pursuant to Schedule 4 Clause 2.4 and that in some cases approval is implied if the employee has made reasonable efforts to obtain CFA transport and has been unsuccessful. The UFU argues that the entitlement to reimbursement in these circumstances is not removed by ambiguity over the correct approval procedure or failure to comply with a procedure. The UFU argue that failure to comply with a procedure does not necessarily justify failure to provide reimbursement where an employee has incurred those expenses and CFA transport has not been provided.
[11] It is not disputed that DG made reasonable efforts to seek CFA transport and in addition made efforts to seek other arrangement such as car pooling or sharing.
[12] I am satisfied that DG did not seek approval from a supervisor. I am satisfied that DG did receive advice through the muster sheet and through the instructions for the course that prior approval from a supervisor was required. The muster sheet required approval from the OIC. However, I am satisfied that DG did not recall the muster sheet at the time of the training course some ten months later. DG did not understand the course instructions as requiring him to seek approval from the OIC. However, I believe that it is hard to see how the course instructions could be understood as suggesting that implied approval was sufficient.
[13] The CFA submitted that clear instructions were given to DG about the need for supervisor approval and that the relevant supervisor was the OIC. The UFU dispute this evidence. It is not necessary in the circumstances for me to resolve this conflict. The CFA submitted that contact with District HQ to see if there was a CFA vehicle available was inadequate. Contact with the relevant supervisor was also necessary as the supervisor may be aware of other activities occurring or may wish to prioritise use of vehicles in order to maximise efficiency and minimise costs.
[14] Mick McGuinness gave evidence for the UFU that he expected a firefighter to first contact District HQ to see if there was a CFA vehicle available and then if a vehicle was not available to speak to the Station Duty Officer, not the OIC, and seek approval to use a private vehicle. Mr McGuinness accepts that there are two steps: check availability of CFA vehicles and get approval from a supervisor. However, Mr McGuinness and the UFU argue that there is no consistent policy in place about the approval process or level. I accept this evidence.
[15] I am satisfied that Schedule 4 Clause 2.4: “Wherever practical, employees are required to obtain approval before incurring travel, personal and out of pocket expenses” applies to travel expenses under Clause 38.8.5. In respect to private transport use for a training course part of this process is establishing that there is no CFA transport available.
[16] It is clear from the provisions of Clause 38.8.5 that there is an entitlement to reimbursement if CFA transport is not provided. The provisions of Clause 2.4 of Schedule 4 and Clause 38.4 must be read in this context. That is, the requirement for prior approval is about establishing whether or not CFA transport is available. An approval process means that the CFA has the opportunity to minimize costs and maximize efficient use of CFA vehicles and allows for the CFA to ensure that supervisors are accountable for and aware of costs. An employee does not have an entitlement to reimbursement for private transport costs to attend training until it is established utilising approval procedures that the employer is not providing CFA transport.
[17] If the CFA withheld approval for the use of a private vehicle and reimbursement of expenses in circumstances where the use of a CFA vehicle was denied, or in circumstances where it was unreasonable or impractical to obtain approval, then the CFA would be in breach of the Agreement. However, Clauses 38 and Schedule 4 entitle the CFA to institute reasonable processes to ensure that it is satisfied that arrangements to minimise private vehicle costs and to maximise the efficient utilisation of CFA vehicles are in place. These arrangements are how the CFA and employees establish whether or not a CFA vehicle is to be made available as required by Clause 38.8.5. These arrangements must be followed, wherever practical, prior to incurring private transport costs and accruing an entitlement to reimbursement.
[18] Having regard to the circumstances of this case and particularly the evidence of Mr McGuinness concerning the absence of consistent procedures for supervisor approval and the evidence of DG that he made additional efforts to seek car pool or sharing, I recommend that LFF Glessing be reimbursed private transport costs of $435.60. This recommendation will only relate to the specific circumstances surrounding this matter and is specifically limited to that matter and it is without prejudice and not to be used as a precedent.
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