Woody Bucci v Ambulance Victoria
[2024] FWC 1411
•29 MAY 2024
| [2024] FWC 1411 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Woody Bucci
v
Ambulance Victoria
(C2024/1114)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 29 MAY 2024 |
Dispute arising under enterprise agreement – dispute determined
Woody Bucci has made an application under s 739 of the Fair Work Act 2009 (Act) and the dispute resolution procedure in clause 11 of the Ambulance Victoria Enterprise Agreement 2020 (Agreement). The application asks the Commission to arbitrate a dispute that has arisen between Mr Bucci and his employer, Ambulance Victoria (AV), about the application of clause 31.13 of the Agreement, which relates to allowances for employees who are required by AV to live away from home.
Mr Bucci lives in Port Fairy near Warrnambool in Victoria. He has a nominal home branch of Warrnambool, where his nominal position is that of an advanced life support (ALS) paramedic. In December 2020, Mr Bucci successfully applied for a role as a trainee on AV’s mobile intensive care (MICA) traineeship program, under which employees can pursue a course of university study and on-road training in order to become qualified MICA paramedics. Mr Bucci passed the university component of the program. On 22 March 2023, he received a letter from AV confirming that he had now progressed to the on-road component of the course, and that for this purpose he had been allocated to the Barwon Southwest (BSW) region, which covers a large area of western Victoria from Geelong to the South Australian border. The letter did not indicate the branch in which the on-road component would be undertaken, however the principal options for on-road training in this region are the Geelong area and Warrnambool. Two weeks later, AV published the roster for the on-road component, which stated that it would take place in Geelong. From May to October 2023, Mr Bucci undertook the first part of the on-road training component at the Belmont branch in Geelong. Since March 2024, he has been undertaking the second part, also in the Geelong area.
In order to undertake the on-road component, Mr Bucci has had to travel from his home in Port Fairy to Geelong and remain there for periods of four days at a time. AV offered Mr Bucci accommodation for these periods, however he found this to be unsuitable because it was not large enough to enable his family to stay with him. He therefore rented his own accommodation. In mid-2023 Mr Bucci contacted his supervisor and said that he believed that he was entitled to the benefits in clause 31.13 of the Agreement. In October 2023, he was advised by human resources that he was entitled to the allowances. Then in February 2024, he received another message from human resources stating that in fact he was not entitled to them. Mr Bucci disputed this. On 23 February 2024, Mr Bucci filed his application under s 739 of the Act. He asks the Commission to determine that he is entitled to the allowances in clause 31.13 of the Agreement in respect of the period of his on-road training.
Clause 31.13 of the Agreement states as follows:
‘31.13 Overnight Travel / Living Away From Home
Employees, required by their Employer to live away from home, to perform their duties are entitled to receive:
(a) an overnight travel allowance specified in Appendix 9 (other than during a period of training);
(b) an allowance to cover the cost of reasonable accommodation and the reasonable costs of cleaning items of uniform unless the Employer provides such accommodation including laundry facilities;
(c) travelling allowance in accordance with clause 31.21;
(d) an allowance to cover meal expenses as follows:
01/07/2019
Breakfast 16.06
Lunch 32.14
Dinner 48.21
Total 96.41
(e) Provided that:
(i) employees returning home, for example during rostered breaks, will not normally be paid a meal allowance;
(ii) an employee who is paid in accordance with the rolled-in rate will receive 50% of the amount listed as lunch in clause 31.13(d).
(f) meal allowances contained in this clause will be adjusted for increased costs of meals as per the Ambulance and Patient Transport Industry Award 2020 as varied on 01 July each year.
(g) An employee who is provided with a meal will not receive a meal allowance.’
Mr Bucci contended that he was entitled to the allowances in clauses 31.13(b) to (g) of the Agreement. He acknowledged that clause 31.13(a) did not apply to him, because his MICA training is a period of study. However, he considered that the other benefits were applicable because he has been required to live away from home, and to work away from his home branch of Warrnambool, in order to undertake the on-road component of his MICA training program. He said that nothing in the Agreement defined his home base and there was no reason to think that it had a meaning other than its ordinary meaning, which in his case was Warrnambool.
Mr Bucci contended that although his nominal position is that of an ALS paramedic, he is presently employed as a MICA trainee, as defined in clause 28.1 (j) of the Agreement, which is a discrete classification with its own rate of pay. He said that the role of a MICA trainee has specific requirements that must be met. Clause 28.1(j) requires a trainee to undertake a graduate diploma in Emergency Health (Intensive Care Paramedic) or an equivalent qualification and/or a MICA graduate program. Further requirements were prescribed in the MICA internship trainee program handbook, his internship letter of offer, and his on-road training letter. He said that one essential requirement of him as a MICA trainee was that he undertake the on-road training, which AV had determined must take place in Geelong. He said that for this reason he was required by his employer to live away from home, and that this requirement formed part of his current duties as a MICA trainee.
Mr Bucci submitted that while his decision to apply to be a MICA trainee was voluntary, the selection was undertaken by AV, and when he was selected, this was akin to a promotion. In order to keep his new position, he was required to be in Geelong, otherwise he would be ‘demoted’ back to his nominal position as an ALS paramedic. Mr Bucci said that AV had required him to live away from home to perform his duties and that he was therefore entitled to the benefits in clauses 31.13(b) to (g) of the Agreement.
Mr Bucci said that AV could have arranged for the MICA on-road training to take place in Warrnambool, as it had done in the past, but that it had chosen not to do so in his case, and that this was a bone of contention for him. As to AV’s rationale for its choice of Geelong as the training venue, which was related to the higher exposure to incidents that trainees can have in Geelong, Mr Bucci said that on-road training had been conducted successfully not only in Warrnambool but also in smaller regional centres.
AV submitted that it was Mr Bucci’s choice to do the MICA traineeship course. AV had not required him to do it. Mr Bucci was sent a letter dated 2 December 2020 advising him that his application had been successful. The letter stated that after completing a graduate diploma he would be offered the MICA on-road training phase, and that he would be allocated to a training region closer to the completion of his studies. The letter also stated that he would receive a variation letter prior to the on-road phase of the course. On 22 March 2023, AV sent Mr Bucci a letter confirming that he had progressed to the on-road training phase. A table appearing under heading 2 of the letter stated that the allocated training branch and the allocated training region were both ‘Barwon South West’. This is in fact a region, not a branch, but it was generally understood that the two principal options for training locations would be the Geelong area or Warrnambool.
AV submitted that Mr Bucci was not entitled to the allowances in clause 31.13 for two reasons. First, the clause was not engaged, because he had not been required by AV to live away from home. He had applied to do the course and then agreed to the offer that was made to him in 2020, and to the on-road training in 2023. AV did not require Mr Bucci to become a MICA trainee and did not require him to remain a trainee. It was his wish to do these things. Secondly, AV said that Mr Bucci was not in fact living away from home, because in the relevant periods, when he was undergoing the MICA on-road training, his home base was in Geelong, not Warrnambool.
Consideration
I am satisfied that clause 11.5 of the Agreement authorises the Commission to determine the present dispute by arbitration. That dispute raises the following question for determination: is Mr Bucci entitled to the allowances in clauses 31.13(b) to (g) of the Agreement in respect of time spent attending MICA on-road training in the Geelong area? In my opinion, the answer to that question is ‘no’.
Clause 31.13 of the Agreement states that employees are entitled to receive the various allowances in that provision where they are ‘required by their Employer to live away from home, to perform their duties’. I find that Mr Bucci has not been required by AV to live away from home. It was Mr Bucci’s decision to apply to be selected as a MICA trainee. He was not required to make an application or to accept the offer that AV made to him in December 2020. Nor was he required to undergo the on-road training component. Clearly enough, Mr Bucci wanted to do so, because this training was necessary in order to become a qualified MICA paramedic. The letter of 22 March 2023 did not identify a branch for the on-road training, and the ‘Barwon South West’ region included both Geelong and Warrnambool, yet it was clear that these were the principal locations in which the training might occur. I also note that the table in the letter of 22 March 2023 states that training branches may change in order to support the MICA training program and operational requirements. I find that it was objectively clear that Mr Bucci might have to do his on-road training component away from home, and that despite this Mr Bucci wanted to do the on-road component and finish the program. In my view, having agreed to these arrangements, Mr Bucci cannot now say that he was required by AV to live away from home.
It does not assist Mr Bucci’s argument that the MICA training course requires participants to meet various requirements in order to pass the course, including the on-road training. These are course requirements. Mr Bucci was not required to commence the course. He is not required to complete it. If he does not finish the on-road training, he will revert to his nominal position of an ALS paramedic in Warrnambool. But that would be a consequence of his own choice.
Mr Bucci said that he knew of other employees who had received allowances under clause 31.13 in circumstances similar to his. He also said that AV could have chosen to conduct the on-road training in Warrnambool rather than in Geelong. But neither of these matters affect the answer to the question for determination. The Commission’s task is to apply the objective meaning of the terms of the Agreement to the facts of the dispute. The task is not to decide on an outcome that the Commission might think to be fair; s 739(5) of the Act prohibits the Commission from making a decision that is inconsistent with an enterprise agreement. Even if Mr Bucci is right to say that the training could just as easily have been done in Warrnambool, this does not alter the fact that AV did not require him to do the training. And it does not require him to remain a MICA trainee.
Secondly, I consider that, at the times when Mr Bucci has been undertaking the on-road training in Geelong, his home for the purposes of clause 31.13 has been the branch in Geelong where this on-road training is performed. This is the practical reality of the situation. Although Mr Bucci retains his nominal position as an ALS paramedic based in Warrnambool, he is not currently serving in that position or at that branch. Part of what it means to be a MICA trainee is that an employee will undergo an on-road training component as determined by AV which may entail living and working away from their place of residence. Enrolling in the course is voluntary, and so is completing it.
Mr Bucci said that his letter of offer dated 2 December 2020 had stated, under heading 4, that if he were required to live away from home he would receive a breakfast and dinner meal allowance. However, it is clear from context that part 4 of the letter is concerned with accommodation and meals during the university component of the course. The dispute which Mr Bucci has referred to the Commission concerns his claim for allowances during the on-road component of his training program. (To the extent that the words in the 2020 letter suggest that allowances will be paid where an employee is ‘required’ to live away from home in the sense of ‘needing’ to live away from home, this would be a departure from the terms of clause 31.13, which connote compulsion by the employer). Mr Bucci also said that under heading 5, the 2020 letter stated that he would be covered by the Agreement and entitled to any applicable allowances, which he took to mean the allowances in clause 31.13. But in my view these allowances are not applicable, for the reasons explained above.
Conclusion
The answer to the question that has been submitted to the Commission for arbitration in settlement of the dispute is as follows: Mr Bucci is not entitled to the allowances in clause 31.13 in respect of the periods spent undertaking the on-road training because he was not required by his employer to live away from home to perform his duties at these times. In any event, when undertaking on-road training, his home branch was in Geelong, not Warrnambool.
DEPUTY PRESIDENT
Appearances:
W. Bucci for himself
N. Fowler for Ambulance Victoria
Hearing details:
2024
Melbourne (by Microsoft Teams)
22 May
Printed by authority of the Commonwealth Government Printer
<PR775464>
0
0
0