Wilkinson v Chief Commissioner of State Revenue

[2016] NSWCATAD 141

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Wilkinson v Chief Commissioner of State Revenue [2016] NSWCATAD 141
Hearing dates:	8 June 2016
Date of orders:	06 July 2016
Decision date:	06 July 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Verick, Senior Member
Decision:	Decision under review is set aside.
Catchwords:	STATE REVENUE – Regional Relocation Grant – whether applicant employed in the regional job after 1 January 2014 – refusal to grant skilled regional relocation incentive - reversed - s 21 – Regional Relocation Grants Act 2011
Legislation Cited:	Regional Relocation Grants Act 2011 Regional Relocation Grants (Skills Incentive) Act 2011
Category:	Principal judgment
Parties:	Edie-Lee Wilkinson (Applicant) Chief Commissioner of State Revenue (Respondent)
Representation:	Counsel: CT Ensor (Respondent)   Solicitors: Edie-Lee Wilkinson (Applicant in person) Crown Solicitor’s Office (Respondent)
File Number(s):	1510653

Reasons for decision

Application

1. This is an application pursuant to s 45 of the Regional Relocation Grants Act 2011 (“the Act”) for a review of a decision by the Chief Commissioner not to grant Ms Wilkinson a skilled regional relocation incentive grant.

2. Relevantly, the skilled regional relocation incentive scheme commenced on 1 January 2014, providing a $10,000 grant to eligible applicants who relocate from metropolitan areas of New South Wales to regional areas of New South Wales for employment purposes, including self-employment.

3. Subject to certain eligible criteria, a person who took up a skilled regional job was entitled to a $10,000 skilled regional relocation incentive under s 18 of the Act. The scheme ceased to operate in March 2015.

Factual Background

4. Ms Wilkinson had applied for a promotion in 2013 and “was successful in winning a full time position at the Broken Hill Crime Scene Section as a Forensic Crime Scene Officer”. She was informed on 16 October 2013 in a letter from the Manager, Payroll Services, New South Wales Police of the terms of her new job.

5. On 16 October 2013 she responded by accepting the position.

6. When she got this position, she was already a police officer working as a customer service representative with Policelink on the Central Coast of New South Wales. She had just returned from maternity leave and negotiated to attend on a part-time basis some informal briefing and training with the Newcastle Police prior to taking up the position in Broken Hill.

7. She commenced her informal briefing and training at the Newcastle Crime Scene Section on 4 November 2013.

8. In January 2014 she moved to Broken Hill and commenced her first day at her substantive location of the Broken Hill Crime Scene Section on Tuesday 27 January 2014. This was confirmed by Mr Leeuwen, Detective Senior-Sergeant, Forensic Zone Manager for the Bathurst, Dubbo and Broken Hill Crime Scene Sections.

9. Mr Leeuwen also confirmed that Ms Wilkinson got the position because she holds a Bachelor of Science (Forensic Science) degree that was essential qualification to undertake the role of a civilian Crime Scene Officer and that the NSW Police were unable to secure a suitable applicant with these qualifications locally.

10. On 9 July 2015, Ms Wilkinson applied for a skilled regional relocation incentive but on 18 August 2015 the Chief Commissioner informed her that she was not entitled to the grant.

11. The Chief Commissioner provided the following explanation for refusing her application for the Skilled Regional Relocation Incentive –

To be eligible for the regional relocation grant you must satisfy certain eligibility criteria and there must be an eligible employment relocation.

Under section 21(3)(c) of the Act an applicant must commence employment in the regional job on or after 1 January 2014.

The letter from NSW Police Force lodged with your application advises you were appointed to your regional job on 4 November 2013.

Unfortunately, as you commenced employment before 1 January 2014 there is no eligible employment relocation.

There is no discretion in the Act to allow an application where employment in the regional job commenced before 1 January 2014.

12. Ms Wilkinson lodged an objection against that decision which was disallowed by the Chief Commissioner on 9 September 2015. Ms Wilkinson was informed of the decision by an email message sent to her and the reasons were given for the decision in a letter dated 9 September 2015.

13. On 20 October 2015, Ms Wilkinson filed this application seeking a review of the Chief Commissioner’s decision not to grant her the incentive grant.

Issue

14. Essentially, the issue for review concerns the date when Ms Wilkinson commenced in her regional job. Her case is that she commenced in the regional job, as confirmed by the Forensic Zone Manager, on 27 January 2014.

15. The Chief Commissioner’s case was that Ms Wilkinson commenced in the job on the 4 November 2013 on the basis of the following factual matters –

1. prior to November 2013, the applicant was employed by the NSW Police Force as a customer service representative with Policelink on the Central Coast of NSW and was remunerated as a grade 2 employee on an annual salary of $........;

2. on 16 October 2013 the NSW Police Force wrote to the applicant and informed her application for the position of Crime Scene Officer – Broken Hill Crime Scene Section, Forensic Services Group had been successful. This appointment was stated to be subject to the condition of a Broken Hill location and a 4 November 2013 commencement date;

3. on 17 October 2013 the applicant signed a statement of acceptance, accepting the offer of employment explicitly subject to those conditions;

4. the Detective Senior Sergeant and Forensic Zone Manager of the Bathurst, Dubbo and Broken Hill Crime Scene Sections reports that after successfully winning a full time position at the Broken Hill Crime Scene Section as a Forensic Crime Scene Officer in 2013, the applicant commenced her training at the Newcastle Crime Scene Section on 4 November 2013, a Monday, which coincided with the applicant being paid as a grade 5 employee on an increased annual salary of $............ from 4 November 2013; and

5. by 2 January 2014 an internal NSW Police Force application for part time work recorded the applicant as being employed at the ‘Broken Hill CSS’ location and noted that she would ‘recommence duties at the Broken Hill Crime Scene Section on or about 29 January 2014’ (emphasis added).

Regional Relocation Grants Act 2011 – relevant provisions

16. It is necessary to refer to the relevant provisions of the Regional Relocation Grants Act 2011, which is now the Regional Relocation Grants (Skills Incentive) Act 2011.

17. An “eligible applicant” is defined in s 4A and requires the person to be a natural person and must be an Australian citizen or a permanent resident on the date the applicant commences employment in the regional job, or commences self-employment in the regional small business.

18. Section 3 provides a number of definitions. The term “metropolitan area” is defined to name several local government areas mostly in the Sydney metropolitan area and includes “the Newcastle local government area”.

19. The section defines “job” to include an “apprenticeship or a traineeship”. But does not define “regional job”.

20. “Regional Area” is defined in s 4 to mean “any part of the State that does not fall within a metropolitan area. The Chief Commissioner’s accepts that Broken Hill was at the relevant time a regional area within this provision.

21. Pursuant to s 18 of the Act –

A skilled regional relocation incentive is payable on application under this Act in respect of the relocation of a person if:

(a)   the applicant is an eligible applicant, and

(b)   the relocation is:

(i)   an eligible employment relocation, or

(ii)   an eligible self-employment.

22. Section 19 prescribes the amount of the incentive, which at the relevant time was $10,000.

23. Section 20 states that the relocation by an applicant is an eligible employment if the requirements set out in the Subdivision are satisfied.

24. Besides the eligible requirements set out in s 4A there are two other important requirements that an applicant needs to satisfy to be entitled to the grant.

25. The applicant must be employed in a regional job and s 21 sets out this requirement in the following terms:

1. The applicant must be employed in one or more regional jobs for:

1. at least 2 years (within the 3 years immediately following the applicant commencing employment in a regional job), or

2. such lesser period as may be permitted by the Chief Commissioner.

2. The Chief Commissioner may permit a period of employment that is less than 2 years if satisfied that the applicant has been unable to continue employment in regional jobs for 2 years because of circumstances beyond the control of the applicant.

3. For the purposes of this Act, an applicant is employed in a regional job if:

1. the applicant is employed in a job on a full-time basis, and

2. the applicant’s principal place of employment in the job is in a regional area, and

3. the applicant commenced employment in the job on or after 1 January 2014.

26. Section 22 requires the employment in a regional job by the applicant to commence before the incentive scheme closure date and further provides that employment in a regional job commences –

1. on the date that the applicant starts working in the regional job, or

2. in the case of an applicant whose eligibility for a regional relocation grant arises out of employment in more than one regional job – the first date that the applicant starts working in any of those regional jobs.

27. Section 22A requires the applicant to relocate from a metropolitan area and is in the following terms –

1. The applicant must relocate from a metropolitan area.

2. An applicant relocates from a metropolitan area if:

1. the applicant relocates, within the period allowed for relocation, to a regional area for the purposes of employment in a regional job, and

2. the applicant, within 12 months before commencing employment in the regional job, had his or her principal place of residence in one or more metropolitan homes for a continuous period of at least 2 years, and

3. each of those metropolitan homes is at least 100 kilometres in a straight line from:

1. each regional home occupied and used by the applicant as a principal place of residence during the 2 years following the applicant’s relocation, and

2. each principal place of employment of the applicant during the 2 years following the applicant’s relocation.

3. The period allowed for relocation is 3 months after the applicant commences employment in the regional job or such longer period as the Chief Commissioner may approve.

4. The Chief Commissioner may approve a longer period for relocation only if satisfied that the delay in relocating is caused by circumstances beyond the control of the applicant.

Discussion

28. As is clear from s 21(3)(c) of the Act an application for an incentive grant can only be made by an applicant if he or she commenced the employment in the regional job on or after 1 January 2014.

29. In this matter the Chief Commissioner has taken the view that Ms Wilkinson commenced in the regional job before that operative date. There was no dispute in respect of any other eligibility criteria.

30. The short question in this matter is essentially whether the applicant commenced in the regional job on 4 November 2013 when she began to be paid the higher salary and when she started some part-time informal training at the police base in Newcastle.

31. In this matter, for Ms Wilkinson to be entitled to the incentive grant pursuant to s 21(3) of the Act she had to be employed in a regional job on a full-time basis with its principal place employment in the job in a regional area and to have commenced the employment in the job on or after 1 January 2014.

32. When read along with s 22 of the Act the regional job had to commence on or after 1 January 2014. The date prescribed by s 22 is the date the applicant starts working in the regional job.

33. The Chief Commissioner in both oral and written submissions placed a great deal of reliance to the work done by Ms Wilkinson in Newcastle which it was submitted should “be taken to be part of the applicant’s employment in the job in Broken Hill”. The Chief Commissioner also relied on the higher salary paid to the applicant from 4 November 2013 which was the remuneration for the new job as a Forensic Crime Scene Officer.

34. My own view is that to be disqualified for the grant the facts should disclose that Ms Wilkinson was employed in a regional job on a full-time basis in a regional area before 1 January 2014. That in my view was not the case in this matter. Prior to taking up the job in Broken Hill, Ms Wilkinson was involved in what was described as a part-time informal training and it was in a metropolitan area.

35. A person is taken to be employed in a regional job only if three eligible criteria are satisfied as set out in s 21(3) of the Act.

36. The first requirement was for the applicant to be employed in a job on a full-time basis. The evidence in this matter is that Ms Wilkinson took up what has been described as a part-time training/briefing attachment on 4 November 2013 with the Police in Newcastle. This was not a full-time job as required by s 21(3)(a).

37. The second requirement was for the applicant’s principal place of employment in the job was in a regional area. When Ms Wilkinson commenced the training/briefing in Newcastle she had not commenced to be employed in Broken Hill or another regional area and hence her only place of employment was in Newcastle, which was not a regional area under the Act.

38. The third requirement was for the applicant to have commenced employment in the regional job on or after 1 January 2014. The applicant was required to have commenced in the regional job on a full-time basis with a principal place of employment in a regional area.

39. In this matter the regional job that Ms Wilkinson secured was employment as a Forensic Crime Scene Officer at the Broken Hill Crime Scene Section. She only commenced in that role after she moved to Broken Hill and on 27 January 2014. In Newcastle, although she was paid the higher salary she did not commence work as the Broken Hill Forensic Crime Scene Officer. The only place she could perform the duties was in Broken Hill and the regional job only commenced on 27 January 2014.

40. Ms Wilkinson only became entitled to the grant when she commenced the full-time regional job at Broken Hill, a regional area on 27 January 2014 clearly after 1 January 2014.

41. I think too much emphasis was given by the Chief Commissioner to Ms Wilkinson’s increased salary from 4 November 2013. There is nothing in s 21 or any other provision in the Act to trigger the eligibility criteria merely on receipt of the salary for the regional job. Section 22 of the Act makes it abundantly clear that employment in a regional job commences on the date that the applicant starts working in the regional job on a full-time basis. Here, it was not in dispute that Ms Wilkinson only commenced her employment as a full-time Forensic Crime Scene Officer at Broken Hill from 27 January 2014.

42. There is no suggestion that the applicant sought an incentive by any special arrangement. She applied for the incentive simply because she was told that she was entitled to the grant. Ms Wilkinson was well within the policy guidelines of the legislation. She was taking up a regional job in a regional area and leaving a metropolitan area to take up the job as required by s 22A of the Act.

43. In my view the Chief Commissioner has taken an extremely narrow and what can also be described as a very simplistic view of the relevant provisions of the law in refusing the incentive grant. In practical terms, Ms Wilkinson took up a regional job in Broken Hill on 27 January 2014, well after the 1 January 2014 requirement.

44. Pursuant to the powers given to the Tribunal under s 46 of the Act the decision under review is accordingly reversed.

45. I will set aside the decision not to grant the incentive grant to Ms Wilkinson and order that she be granted the incentive grant.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 06 July 2016