[2013] FWC 5592 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Michael Stevens
v
Australian Federal Police
(C2013/3273)
Commonwealth employment | |
COMMISSIONER LEE |
MELBOURNE, 15 AUGUST 2013 |
Application to deal with a dispute.
[1] On 25 February 2013 Mr. Michael Stevens (the Applicant) referred a dispute with Australian Federal Police (the Respondent) to the Fair Work Commission (the Commission) pursuant to the dispute settlement procedure contained in clause 70 of the Australian Federal Police Enterprise Agreement 2012-2016. This agreement will be referred to throughout this decision as the “New Agreement”.
[2] The matter also involved consideration of the terms of the Australia Federal Police Collective Agreement 2007-11. That agreement will be referred to throughout this decision as the “Old Agreement”
[3] The application lodged stated that the dispute related to clause 16 “Management Initiated Temporary Transfer”, Clause 58 “Redeployment and Redundancy” and Clause 59 “Termination of Employment” of the New Agreement. The Applicant alleges that the dispute involves the Respondent’s failing to agree to make the Applicant redundant and pay the Applicant his redundancy entitlements of 52 weeks severance pay, pursuant to clause 58(17)(d) of the New Agreement and the Respondent’s failure to pay notice period payment entitlements pursuant to clause 59 of the New Agreement.
Proceedings
[4] The dispute was initially dealt with in conciliation by Commissioner Lewin on 21 March 2013, however the conciliation failed to resolve the dispute. The matter was then allocated to me for arbitration.
[5] After a number of failed attempts to hold a mention/directions hearing in order to settle on the question to be determined in the arbitration, I wrote to the parties on 8 April 2013 and proposed a possible question to be determined in the arbitration. I framed the question based on the materials that had been filed by the Applicant. That question was;
“Is the Applicant entitled to redundancy pay pursuant to the Australian Federal Police Enterprise Agreement 2012-16?”
[6] Mr. Matarazzo, acting on behalf of the Applicant replied on the morning of 9 April 2013 that the question to be determined should be as follows:
“When the applicant applied for voluntary redundancy in December 2011, is the Applicant entitled to redundancy pay pursuant to the Australian Federal Police Collective Agreement 2007-11 which was still in place prior to making of the subsequent Australian Federal Police Enterprise Agreement 2012-16 approved on March 2, 2012?”
[7] Later in the day on 9 April 2013, Mr. Matarazzo advised that he sought a further change to the question to be determined. His further amended wording was as follows;
“Was the Applicant entitled to voluntary or involuntary redundancy pay pursuant to the Australian Federal Police Collective Agreement 2007-11 which was still in place prior to making of the subsequent Australian Federal Police Enterprise Agreement 2012-16 approved on March 2, 2012.”
[8] Mr. Matarazzo stated that the “question is in essence what the dispute is about”. The Respondent advised by email on 10 April 2013 that they had no objection to the variations to the question sought by Mr. Matarazzo. I amended the question to be determined to reflect the change sought by Mr. Matarazzo, consented to by the Respondent, and sent out to the parties the amended question and directions for hearing the matter by way of a Statement on 10 April 2013.
[9] Notwithstanding the question to be determined reflecting the wishes of the Applicant, on the day of the hearing Mr. Matarazzo sought, to amend the question to refer to rights for redundancy under the New Agreement. 1 In effect, to return to the question that I originally framed. This last minute change on the part of the Applicant’s representative was difficult to comprehend given the process outlined above for setting the question to be determined. It also made the conduct of the proceedings more protracted than they needed to be and created a level of confusion for both the Respondent and the Commission. In any event, I have considered in determining this matter, whether or not the Applicant is or was entitled to voluntary or involuntary redundancy pay under either the Old Agreement or the New Agreement.
[10] The matter was set down for hearing on 13 May 2013 in Darwin. Mr Matarazzo sought and was granted permission to appear on behalf of the Applicant. Mr Will sought and was granted permission to appear on behalf of the Respondent. Evidence was given by the Applicant and Mr Edward Paul Williams gave evidence for the Respondent.
Background to dispute and chronology of events
[11] The Applicant was employed as a Protective Service Officer (PSO) at the Darwin International Airport. He commenced work there in March 1996. In June 2009 a Federal Audit of Police Capabilities was delivered by Mr. Roger Beale. The audit recommended that the Respondent change from the “Unified Policing Model” to a new “All in” model. The recommendation was accepted by the Federal Government in December 2009. Under the new model, all security and policing services at Australian airports are to be provided by Australian Federal Police members. “Project Macer” was set up in July 2010 to manage the transition to an all Australian Federal Police member model, and the phasing out of the role of PSOs at Australian Airports over a three to five year period. Approximately 600 PSOs at Australian Airports were affected by the change to this new model. 2 The Applicant was one of those affected.
[12] As a consequence of the change to the new model, the Applicant along with other PSOs was declared potentially “excess to requirements” on 27 May 2010. He along with other PSOs was advised by email that this was the case. The email referred to clause 33 of the Old Agreement indicating that the reason the roles were potentially excess was that, “the services of the employee cannot be effectively used because of technological or other changes in the method, or changes in the nature, extent or organisation of the functions of the AFP”. 3 The email included the following paragraph: “I appreciate that this notification may cause you some concern. I would like to reassure you that wherever possible the AFP will be seeking to support those who wish to become sworn officers...to make that transition or alternatively for those who do not wish to become sworn police officers, determining if there is a suitable redeployment option.”4
[13] On the next day, 28 May 2010, there was an email sent to the Applicant and all aviation staff, calling for expressions of interest for voluntary redundancy arising from the change to the “all in” model. 5 This email refers to the Respondent pursuing a policy of redeployment, reduction or redundancy, in accordance with the Old Agreement.
[14] The Applicant did not make an expression of interest in voluntary redundancy at that time. Rather, he chose to be redeployed into a sworn member policing role, by applying for a vacant position and accepting a position on the transitional training program. That offer was made on 11 October 2010. 6 The Applicant could still at that time have elected to take a voluntary redundancy but chose not to.7 Subsequently, the Applicant progressed successfully through the required several weeks of training in Canberra, attested as a sworn Australian Federal Police member and was declared a sworn member of the Australian Federal Police on 4 March 2011.8 The Applicant agreed to the revocation of his status as a PSO on 2 March 2011. His status as PSO was revoked on 3 March 2011. He was assigned to duties at Darwin Airport. The assignment notes that it had effect from 5 March 2011 to 31 December 9999 (i.e. an unspecified end date).9 At the time of the hearing, the Applicant was performing the role of an Australian Federal Police officer at Darwin Airport.
[15] Sometime after becoming a sworn officer of the Respondent, the Applicant determined that he did not enjoy the role of sworn member and sought a return to the role of a PSO. The Applicant first raised this request with the Respondent in late December 2011. The Respondent replied in January 2012 that his application to revert to PSO status was not possible in Darwin as there were no longer PSO positions in Darwin. 10 The Applicant was told that he could remain in his current role or place his name on the PSO redeployment register with a view to reverting to PSO status and taking a position in another location at his own expense.11
[16] The Applicant sent further correspondence to the Aviation executive of the Respondent on 11 May 2012. 12 In that correspondence, the Applicant again requested to revert to a PSO role. In the correspondence, the Applicant makes reference to reverting to a PSO as an “option” that the Respondent had made available in the “AFP Practical Guide on Project Macer PSO redeployment” (the Project Macer Practical Guide).13
[17] The Applicant received a reply from the Aviation Executive to his minute on 25 July 2012. 14 In that reply it was made clear by the Respondent that the request to revert to PSO status was rejected. The text of the reply minute from Mr. Williams - Manager Aviation Operations, was as follows:
“Dear Constable Stevens,
Firstly, I would like to apologise for the delay in providing a response to your Minute of 13 May 2012. Your Minute was not received by the Aviation Executive until 12 July 2013.
Your request to revert to your previous Protective Service Officer (PSO) status is not supported by the Aviation Executive and therefore, will not occur.
Once a PSO has attested (successfully completed the recruit training program) and sworn in as an AFP member, the PSO position from which he/she originated is removed from the AFP staffing establishment. That is, the PSO position no longer exists and that member is no longer potentially excess to requirements. It is neither logical nor feasible to revoke the sworn status of a member and declare that member to be a PSO (again) under s40EA and return them to a PSO position that no longer exists.
The AFP Practical Guide on Project Macer PSO Redeployment refers to an inability to meet training or workbook requirements. You have successfully met the training requirements and are demonstrating the ability to meet workbook requirements.
I will take this opportunity to advise that you will not qualify for a Voluntary Redundancy.
I appreciate this is not the outcome you were seeking however I trust that it clarifies the AFP’s position and goes some way to encourage you to re-assess your future plans.
Regards,
Paul Williams
Manager Aviation Operations
25 July 2012.”
[18] The Applicant then on 1 August 2012 wrote to Assistant Commissioner Leanne Close, the National Manager of Human Resources for the Respondent. Again, the Applicant sought a reversion to a PSO position referring to the “option that the AFP had made available in the [Project Macer Practical Guide]”. 15 Ms. Close replied to this correspondence on 30 October 2012, rejecting the Applicants claim to revert back to his former PSO role. Ms Close again stated that there were no longer PSO positions in Darwin. The option was provided to potentially revert to a PSO role, but that this would require moving geographic locations. Ms. Close indicated she would be happy to facilitate this where possible.16
[19] In these circumstances, the Applicant claims that he is entitled, within either the terms of the Old Agreement or the New Agreement, to be made redundant, either voluntarily or involuntarily. The chronology above demonstrates that the Project Macer Practical Guide is, from the Applicants perspective, an important consideration, along with other evidence led by the Applicant, in determining the question I must answer. The Applicant submits that there is the necessary jurisdiction to determine the dispute.
[20] The position of the Respondent is that the Applicant is not redundant and that redundancy payments can only be made when an employee is redundant. Further, the Respondent argues that that the provisions of clause 33 of the Old Agreement that deal with redeployment or reduction in classification are “legally and logically mutually exclusive” from the provisions that deal with redundancy. 17 The Respondent argues that the Applicant was excess to requirements in May 2010 and that in accordance with the terms of clause 33 of the Old Agreement, the Applicant was given the option of expressing an interest in redundancy or redeployment. Having chosen to be redeployed, the Respondent maintains that the Applicant cannot now be made redundant as the position to which he has been redeployed is not, in fact, redundant. In respect to the Project Macer Practical Guide the Respondent submits that it applies to any existing PSO intending to become an Australian Federal Police member, not to Australian Federal Police members and that it is not a mechanism whereby sworn members can revert to their former PSO role.18 The Respondent submits that there is no jurisdiction to determine the dispute.
The law to be applied
[21] This decision requires a consideration of the correct approach to the construction of the terms of enterprise agreements (in respect of the New Agreement) and transitional instruments (with respect to the Old Agreement). I recently canvassed the key authorities in my decision in National Union of Workers v Warehouse Solutions Pty Ltd 19 and for convenience I will in large measure reproduce them here.
[22] In a recent Full Bench decision of the Commission, Cape Australia Holdings Pty Ltd T/A Total Corrosion Control Pty Ltd v Construction, Forestry, Mining and Energy Union 20, the general approach to the construction of enterprise agreements was considered. The Full Bench stated that;
“[7] As to the general approach to the construction of enterprise agreements the observations of French J, as he then was, in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (Wanneroo) are apposite:
“[53] The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘...the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘....ideas that gave rise to an expression in a document from which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).”
[8] While his Honour’s observations were made in the context of interpreting an award the same principles apply to the interpretation of enterprise agreements. For example, similar observations were made by their Honours Gummow, Hayne and Heydon JJ in Amcor v CFMEU:
“Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate.”
[9] The fact that the instrument being construed is an enterprise agreement is itself an important contextual consideration. As French J observed in Wanneroo, at paragraph [57]:
“It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg Geo A Bond and Co. Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):
“Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.”” 21 [Footnotes omitted]
[23] The case at hand involves the consideration of extrinsic material. It is therefore important to consider the admissibility of such material and whether or not it is necessary to find ambiguity in the relevant instrument before it is admissible.
[24] In Watson v ACT Department of Disability Housing and Community Services 22, a decision of Vice President Lawler, it was held that;
“[15] In summary, the general principles governing the construction of contracts laid down by the High Court in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales apply to the construction of industrial agreements. However, consistent with the approach in Kucks and Short v FW Hercus Pty Ltd, an industrial agreement must always be construed in context: the context of particular provisions within the agreement as a whole and the context in which the agreement was made including any relevant statutory or historical context. Extrinsic evidence as to the context in which the agreement was made, including the statutory and historical context, will be admissible to demonstrate the existence of ambiguity and or to resolve ambiguity.” 23 [Footnotes omitted]
[25] This approach was favourably referred to by the Full Bench in The Australian Workers’ Union v Co-operative Bulk Handling Limited 24 where it was stated that;
“[14] The extract from Watson and the approach of Logan, J, inform the manner in which we approach the test of construing the agreement and leads to the conclusion that regard must be had to extrinsic material in order that the meaning of the clause in question may properly be understood.” 25
[26] This approach was consistent with the approach adopted by his Honour Marshall J in Australian Municipal, Administrative, Clerical and Services Union v The Treasurer (Cth) and others 26 where it was stated that;
“There is no sound reason why recourse to probative extrinsic material by the Court should be conditional on identification of an ambiguity. Further, there is no sound reason why use of extrinsic material should be limited to identifying the mischief sought to be addressed by the award, as distinct from construing the meaning of the award itself. But the debate is rather academic. I regard myself bound by the approach of Burchett J in Short v Hercus, Drummond J having agreed with his Honour’s approach on the issue of award interpretation and the use of extrinsic material.” 27
[27] The following section the decision of Burchett J in Short v FW Hercus Pty Ltd 28 is relevant to a consideration of where a word or expression may be considered to be ambiguous, what it may mean.
“The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it has been used.” 29
[28] In my view, there is considerable authority to support an approach that allows for the admissibility of extrinsic material even in circumstances where ambiguity is not present. However such an approach does not allow a departure from the principles as they apply to the reliance on extrinsic material in Short v FW Hercus Pty Ltd 30. As described above, Marshall J in Australian Municipal, Administrative, Clerical and Services Union v The Treasurer (Cth) and others31 makes clear he is bound by those principles.
[29] Nor does recourse to extrinsic material allow a departure from the principles applying to construction as set out in Cape Australia Holdings Pty Ltd T/A Total Corrosion Control Pty Ltd v Construction, Forestry, Mining and Energy Union 32 already set out.
[30] I will apply these principles as relevant in this determination.
Jurisdiction
[31] Both parties provided written submissions on the question of jurisdiction. The Applicant contends that there is jurisdiction though the submissions from the Applicant’s representative on the issue were far from clear. The Respondent argued that there was no jurisdiction for the Fair Work Commission to determine the matter.
[32] The Respondent’s submissions helpfully and clearly set out the legal position on the powers of the Fair Work Commission to arbitrate disputes pursuant to the Act and I repeat and adopt them here.
“4. Sub-sections 595(1) and (3) of the Fair Work Act 2009 (the Act) provide that:
(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision in this Act.
…
(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
5. The power of the Commission to deal with disputes is governed by Part 6-2, Division 2 of the Act, and is specifically granted by ss738 and 739. Relevantly, s738(b) provides that:
This Division applies if:
…
(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); …
6. The other three paragraphs of s738, (a), (c) and (d), apply the Division if a modern award, contract of employment or other written agreement, or a determination under the Public Service Act 1999 include a term that provides for a procedure for dealing with disputes. None of those paragraphs apply in the present case.
7. An enterprise agreement is defined in s12 of the Act to mean either a single-enterprise agreement, or a multi-enterprise agreement. A single-enterprise agreement is further defined by s12 to mean an enterprise agreement made as referred to in subsection 172(2) of the Act.
8. Section 739(3) provides that:
In dealing with a dispute the FWC must not exercise any powers limited by the term.
9. The AFP Enterprise Agreement 2012-2016 (which is a single enterprise agreement made in accordance with s172 of the Act) includes a term that provides for a procedure for dealing with disputes at clause 70. Sub-clause 70(1) provides that:
(1) For the purpose of preventing and settling disputes arising from this Agreement, the dispute resolution procedures specified below will be followed. (emphasis added).
10. The final step in that dispute resolution procedure is for a party to refer the matter to Fair Work Australia, now the Commission.”
[33] The primary issue is whether or not the dispute involves an exercise of the dispute settlement power in the New Agreement or the Old Agreement. It is not contested that the Applicant fell within the coverage of both the Old and the New Agreement. 33 That being the case, it is clear that having regard to the Transitional Provisions and Consequential Amendments Act 2009, that the Old agreement has been displaced by the New Agreement and has no legal effect.34 It follows that there is no power to arbitrate this matter under the dispute settlement clause of the Old Agreement as it no longer has legal effect.
[34] That determined, this dispute can only be determined (and only then if the other requirements for jurisdiction are satisfied) pursuant to the dispute settlement procedure contained in the New Agreement.
[35] A further requirement to allow jurisdiction to be exercised is whether or not the relevant steps in the dispute settlement procedure contained in the New Agreement have been followed. There is no jurisdiction for the Commission to determine a matter if the relevant steps in the dispute settlement procedure have not been followed. In this matter, that is not in contention. It was submitted by both parties that the relevant steps have been followed. The chronology above makes clear that the relevant steps were complied with.
[36] Consideration also needs to be given as to whether there is power to arbitrate under the dispute settling clause in the New Agreement. This leads to the basis of the jurisdictional objection of the Respondent which is rooted in clause 72(18) of the New Agreement. That clause is as follows:
“(18) The redundancy provisions in the Collective Agreement will apply to the exclusion of the terms in this Agreement to Employees in the following categories:
(a) Employees within the Aviation portfolio subject to “Project Macer” and “Project Guild” who have been advised by the Commissioner that their role is potentially excess, notwithstanding that this advice may occur after the commencement of this Agreement; and
(b) any Employee who, prior to the commencement of this Agreement, has been advised by the Commissioner that their role is potentially excess.”
[37] It was submitted by the Respondent at the hearing 35 and in their written submissions36 and not contested by Mr. Matarazzo, that the Applicant was an employee covered by both categories in sub clauses 72(18)(a) and (b) of the New Agreement. As it is clear that 72(18) applies to the Applicant, the Respondent points out that that this clause provides that the “redundancy provisions” of the Old Agreement apply to the Applicant. The Respondent in turn points out that the wording in clause 72(18) provides that the redundancy provisions apply “to the exclusion of the terms in the agreement.” The Respondent submits that this provision needs to be read together with the opening words of clause 70 which allows for the settlement of disputes about matters arising under this agreement.37
[38] It is submitted by the Respondent that the consequence of these provisions is that the present dispute, which is about the Applicant’s entitlement to redundancy pay under the Old Agreement, is not within the dispute resolution term set out in clause 70 of the New Agreement as that term is limited to disputes arising from the New Agreement. 38
[39] Mr. Mattarazzo for the Applicant asserted that the dispute settlement term should not be narrowly construed. 39
[40] I agree with the submissions of Mr. Matarazzo that the term “arising from the agreement” should not be narrowly construed. The words should be given their ordinary meaning. Clause 72(18) in the New Agreement clearly contemplates that a particular class or classification of employees is to be treated in a different manner to other employees in respect to redundancy. This is consistent with the submissions of Mr. Will, that it was “the fair thing to do”. 40 Clause 72(18) is unambiguously part of the New Agreement. In my view, in referring to the redundancy provisions of the Old Agreement as applying to the exclusion of the terms in the New Agreement, the New Agreement incorporates the redundancy provisions of the Old Agreement, for the relevant class of employees, as terms of the New Agreement.
[41] I do not accept the argument of Mr. Will for the Respondent that the dispute settlement procedures in the New Agreement do not apply to the Applicant because of the operation of clause 72(18). The logical extension of this argument is that none of the terms of the New Agreement apply to the Applicant or other employees within the scope of clause 72(18). Mr. Will for the Respondent initially claimed that the intent of those words was that all of the other terms, including the dispute settling terms, fall away. 41 He then clarified that he thought it was only the dispute resolution clause that doesn’t apply to them.42 His response to my question as to how one could pick out just that the dispute settlement clause as not applying was unclear.
[42] The words in clause 72(18) need to be given their ordinary meaning. They also need to be considered within the context of the New Agreement as a whole. A strictly literal interpretation of the words suggests that the redundancy provisions in the Old Agreement apply to the exclusion of all the terms of the New Agreement. However, the scope clause in clause 5 of the New Agreement makes clear that the New Agreement applies to all employees of the Respondent, with various exceptions noted. The Applicant does not fall within any of the exempted categories. The exemptions do not include employees covered by clause 72(18).
[43] There is no basis upon which it could be found, as submitted by the Respondent, that the words in clause 72(18) of the New Agreement operate to exclude only the dispute settling clause and not all the other terms. As a matter of construction, it seems the choice is to determine that all of the clauses in the New Agreement are excluded from their application to the Applicant and others in his category or alternately, it is only those terms that could be said to relate to redundancy that are excluded.
[44] In my view, it would indeed be an absurd and illogical outcome if the former interpretation were true. 43 It would mean that the Applicant and others in his category are excluded from all of the terms of the New Agreement. This is clearly a circumstance where illogical prose should be met with a generous approach to construction. To do otherwise would be to construe the agreement in a manner that was divorced from industrial realities. Accordingly, I determine that the proper construction of clause 72(18) is that it operates so as to exclude the redundancy terms in the New Agreement from application to employees falling into the categories of sub clauses 72(18) (a) and (b.) It follows that all of the other terms of the New Agreement, including the dispute settling terms, apply to the Applicant.
[45] It follows from the reasoning above that a dispute over the entitlement to redundancy arising from the application of the redundancy terms of the Old Agreement, is in fact “a matter arising” under the New Agreement, provided that the employee is in a category covered by clause 72(18) of the New Agreement. As the Applicant is in such a category, it follows that there is jurisdiction to determine the question posed within the limits of the dispute settling clause in the New Agreement.
[46] I therefore conclude that there is the necessary jurisdiction to determine the answer to the question as posed, under the terms of the dispute settling power in the New Agreement.
[47] I further note that it follows that there is no jurisdiction to determine the alternative position advanced by Mr. Matarazzo on the day of the hearing that the applicant is entitled to redundancy under the terms of the New Agreement. As the Applicant is covered by clause 72(18) of the New Agreement, he is excluded from the redundancy terms in the New Agreement.
[48] In light of my finding above it is not necessary to deal with the additional argument of the Respondent that the dispute settlement clause 47 of the Old Agreement is not a term of an “enterprise agreement” as provided for in section 738(b) of the Act. 44
Submissions and evidence
[49] The Applicant gave evidence on his own behalf. Mr. Burtenshaw also provided a statutory declaration for the Applicant. He did not appear as the Respondent did not seek to cross examine him. Mr. Williams gave evidence for the Respondent.
[50] Much of the history of this matter is uncontested and the chronology is set out above. Indeed, a great deal of the evidence of the Applicant goes to the chronology of events. Other evidence that was provided by the Applicant included:
[51] As detailed above, a statutory declaration was filed by Mr. Burtenshaw. Mr. Burtenshaw was also a student at the AFP course in Canberra when the Applicant was there. Mr Burtenshaw makes the claim in his declaration that: “To the best of my recollection we were informed that at any time during the MACER course or the following year after whilst we are completing our competency log books, we can if we choose to or if we are unable to complete the work book, revert back to our original positions of PSO’s from where we had come from”. Mr. Burtenshaw did not appear at the hearing.
[52] The evidence of Mr. Williams for the Respondent largely sets out the chronology of events and that has been dealt with above. Other matters raised in his evidence and relevant to the dispute include:
The Management Initiated Transfer issue
[53] The submission of the Applicant included the assertion that the employee was the subject of a “Management Initiated Transfer” (MIT), pursuant to clause 19.3 of the Old Agreement. There was no evidence to support the submission of the Applicant that this was an MIT within the meaning of that clause. Nor was it clear from the submissions of Mr. Matarazzo how, were it to be found to be applicable, that would impact on the question to be determined. In any event, I do not consider that the redeployment of the Applicant was an MIT within the meaning of that clause of the agreement. However, even if I am wrong on that point, I cannot see that it would have any bearing on my determination. The MIT clause provides an entitlement for a “base composite” to be paid or not paid, depending on the type of transfer. The MIT clause has no relationship or impact on the operation of clause 33 of the Old Agreement.
Consideration
Is the applicant entitled to redundancy under either the old or new agreement?
[54] As discussed above under jurisdiction, it is clear that the terms of clause 33 of the Old Agreement apply to the Applicant through the operation of clause 72(18) of the New Agreement. If there is a right to redundancy, it is through the application of that clause to the circumstances of the Applicant.
Does the applicant have a right to redundancy under clause 33 of the Old Agreement?
[55] The key matter for determination is the proper construction of clause 33 of the Old Agreement. I note that the Applicants’ representative did not provide any submissions particularly directed to this task, despite it being a fundamental aspect of the case. The Respondent’s submission on the proper construction of clause 33 are set out below;
“3. The effect of the relevant paragraphs of clause 33 can be summarised as follows:
(a) Where the Commissioner determines that employees are excess to requirements, they will be subject to redeployment, reduction in classification, or redundancy process (par 179).
(b) An employee will be considered excess if their services cannot be effectively used because of technological or other changes in the methods, or changes in the nature, extent or organisation of the functions of the AFP (par 180(b).
(c) Where an employee is likely to become potentially excess, the Commissioner will advise the employee in writing as soon as practicable of the situation, and the advice will include the reasons that the employee is likely to become excess (par 181).
(d) For redeployment or reduction in classification an employee will be moved to a suitable job at or below their substantive classification (par182).
(e) Where an employee is moved to a job below their substantive classification they will maintain their previous salary (par 183).
(f) For redundancy under the terms of the Agreement, the following payments are to apply:
(i) 2 weeks for each completed year of service prior to 1 July 1990, and pro-rata payment for each completed month of service, since the last completed year;
(ii) For eligible service post 1 July 1990:
(A) 12 weeks pay for up to an including 3 years service;
(B) 18 weeks pay for service in excess of 3 years and up to 6 years;
(C) 36 weeks pay for service in excess of 6 and up to 9 years; and
(D) 52 weeks pay for service in excess of 9 years (par 184(a) and (b))
(iii) Plus any payments in lieu of notice and final monies for unused recreation leave and long served leave (par 185 and 186).
(iv) Redundancy payments will be limited to a maximum of 52 weeks (par 187).
4. The Respondent submits that the provisions of par 182 (redeployment or reduction in classification) on the one hand, and par 184 (redundancy) on the other, are legally and logically mutually exclusive: an excess employee can either be redeployed to a suitable job at or below their classification, or be made redundant. They cannot be both.”
[56] I agree with the construction of clause 33 advanced by the Respondent. It is consistent with the ordinary meaning of the words. The clause provides a process to be followed in circumstances where an employee is found to be excess to requirements. The Applicant was excess to requirements in May 2010. The evidence is that the Respondent followed the process in clause 33. The Applicant was provided with options to either express an interest in redundancy or retraining and redeployment for a position as a Australian Federal Police officer. There was a considerable period of time, between May and October 2010 between when the Applicant was declared excess to requirements and when he accepted the position on the training course. The Applicant’s evidence was that an option of applying for voluntary redundancy was available to him as late as October 2010.
[57] Ultimately, the process was completed. He is now a sworn Australian Federal Police officer. The terms of clause 33, assuming my construction of its terms are correct, was complied with. The Applicant is no longer excess to requirements. The unchallenged evidence of Mr. Edwards is that the Respondent is recruiting Australian Federal Police officers. To be clear, for an entitlement to redundancy to arise the Applicant must first be excess to requirements. Mr. Stevens is, on the uncontested evidence, not now excess to requirements.
Does the Applicant have a right to return to a PSO position?
[58] The submission of Mr. Matarazzo for the Applicant was essentially that the Applicant had a right to return to his, now abolished PSO position by virtue of the provisions of the Practical Guide to Project Macer, thus triggering rights to redundancy, under either the Old or New agreement. As a first point, I do not think that there is any such right within the terms of either clause. As said above, the clauses provide a process; that process was commenced, followed and completed. There is no right to return to the position that was abolished, that lead to the process commencing. Indeed, in my view this would be an absurd construction of the terms of either clause in the Old or New Agreement.
[59] The key argument of Mr. Matarazzo was that the right to return to a PSO position derives from the Project Macer Practical Guide itself. This requires a consideration of what the status of the Project Macer Practical Guide is. In his submissions, Mr. Matatarzzo said that the Project Macer Practical Guide had contractual force. 58 On the day of the hearing, Mr Matarazzo changed that submission and put the alternate submission that they were, “issued under the consultation clause of the enterprise agreement, as they are obliged to do”.59 He sought in the alternative to argue that they formed part of the consultation requirements arising under the terms of the agreement and therefore they could be considered as being incorporated into the terms of the agreement.60 There was no authority advanced for this proposition, no evidence led in support, nor was the argument developed. The Respondent submitted that there was not a basis to find the Project Macer Practical Guide was incorporated.61
[60] I agree with the submissions of the Respondent on this point. The Project Macer Practical Guide is not an incorporated term, into either the Old or the New Agreement. There is no evidence to support the view that it is an incorporated document. There is nothing in the Project Macer Practical Guide which suggests that it arises from an obligation under the Old or New agreement. The evidence of Mr. Williams was that it was issued as part of the Respondent’s professional standards framework. The Project Macer Practical Guide was issued by the National Manager Aviation using power under s.37(1) of the Australian Federal Police Act 1979. 62 It is clear that the Project Macer Practical Guide is a document that the Respondent chose to produce as part of implementing the scheme. They were not compelled to produce it through the operation of the consultation or any other clause.
[61] As indicated above, there is no basis to conclude the Project Macer Practical Guide is an incorporated term into either the Old or the New Agreement. As it does not form part of either agreement it cannot form the basis of an entitlement to voluntary or involuntary redundancy pay for the Applicant. It is therefore not necessary to consider the construction of the terms of the Project Macer Practical Guide as I am urged to do by Mr. Matarazzo.
[62] The status of the Project Macer Practical Guide is that of extrinsic material. It represents an attempt by the Respondent to set out the various processes to be followed in implementing “Project Macer” and how the processes relate to the obligations under the Old Agreement. Having considered the terms of the Project Macer Practical Guide I can understand that its terms may have lead to some confusion for the Applicant as to the operation of the scheme. The Project Macer Practical Guide clearly indicates that PSOs taking the option that the Applicant took, “to pursue a career in policing” had full access to clause 33 of the Old Agreement if they could not meet training or workbook requirements, or elected to return to their former PSO role. There is also the reference to the assignment to a policing role for an initial 12 month period. This particular paragraph is not clear and creates some ambiguity as to how long it would be that an employee taking this option would have to return to their former PSO role.
[63] The Respondent sought to remove this ambiguity in the “e news” update dated March 2012, which sought to clarify, “When you are no longer part of the Macer process”. 63 Taken together, the documents do not give rise to ambiguity as to the meaning of clause 33 of the Old Agreement.
[64] As already indicated, the terms of clause 33 of the Old Agreement are clear. They do not provide a right for the Applicant to return to a PSO position nor to be made redundant when excess to requirements. While the evidence demonstrates, particularly the Project Macer Practical Guide, that the Respondent provided some level of flexibility as to when the door closed on the option of switching back to the redundancy option for employees who had chosen to redeploy, they were not bound to do so by the terms of clause 33. Having done so, it is also reasonable that the Respondent, having allowed that flexibility, to set some limit as to when the option for redundancy is no longer available.
Conclusion
[65] There is no entitlement to voluntary or involuntary redundancy pay under the terms of the Old Agreement, where the employee is no longer excess to requirements.
[66] The Applicant was, at a point in time now past, excess to requirements. Under the terms of clause 33 of the Old Agreement, he was entitled to redeployment, reduction in classification or a redundancy process. The Applicant was redeployed to a position of a sworn police officer with the Australian Federal Police. As an Australian Federal Police officer, it is clear on the evidence that he is not excess to requirements. Therefore there is no entitlement to redundancy.
[67] In terms of the Project Macer Practical Guide, these are not incorporated terms and therefore do not provide an entitlement to either return to his old position and/or be made redundant. Therefore, they do not provide a basis for answering the question in the affirmative as the Applicant seeks me to do.
[68] As extrinsic material, the Project Macer Practical Guide can be considered, along with other extrinsic material, in considering the construction of the terms of clause 33 of the Old Agreement. However, clause 33 is clear in its terms. The options of redeployment, reduction in classification or redundancy appear to be, on the ordinary meaning of the words, mutually exclusive. 64 When all of the extrinsic material is considered together, it does not give rise to an ambiguity in Clause 33.
[69] It follows from the above reasoning that the answer to the question to be determined by me in this matter is no. Further and consistent with my reasoning above, the answer to the alternate question put by Mr. Matarazzo on the day of the hearing, “Is the applicant entitled to redundancy under the terms of the new agreement”, the answer is also no.
[70] I note that 70(11) states that parties to the dispute agree to be bound by a decision of FWA in accordance with this decision.
COMMISSIONER
Appearances:
L Matarrazzo for the Applicant
M Will for the Respondent
Hearing details:
2013
Darwin:
13 May
1 PN82
2 Statutory Declaration of Mr Edward Paul Williams, dated 6 May 2013, [4]
3 See Attachment B to the Statutory Declaration of Mr Edward Paul Williams, dated 6 May 2013.
4 Ibid
5 Attachment C to the Statutory Declaration of Mr Edward Paul Williams, dated 6 May 2013.
6 Attachment E to the Statutory Declaration of Mr Edward Paul Williams, dated 6 May 2013.
7 PN340-348
8 Attachment H to the Statutory Declaration of Mr Edward Paul Williams, dated 6 May 2013.
9 Ibid
10 Exhibit 6 to the Statutory Declaration of Mr Michael John Stevens dated 21 April 2013
11 Ibid
12 Exhibit 8 to the Statutory Declaration of Mr Michael John Stevens dated 21 April 2013
13 Ibid
14 Exhibit 9 to the Statutory Declaration of Mr Michael John Stevens dated 21 April 2013
15 Exhibit 10 to the Statutory Declaration of Mr Michael John Stevens dated 21 April 2013
16 Exhibit 13 to the Statutory Declaration of Mr Michael John Stevens dated 21 April 2013
17 Respondent’s submissions, filed 7 May 2013, [4]
18 Respondent’s submissions, filed 7 May 2013, [13]
21 Cape Australia Holdings Pty Ltd T/A Total Corrosion Control Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FWAFB 3994, [7] - [9]
22 [2008] AIRC 291
23 Watson v ACT Department of Disability Housing and Community Services, [2008] AIRC 291, [15]
25 The Australian Workers’ Union v Co-operative Bulk Handling Limited, [2010] FWAFB 4801, [14]
26 (1998) 80 IR 345
27 Australian Municipal, Administrative, Clerical and Services Union v The Treasurer (Cth) and others, (1998) 80 IR 345 at 347
28 (1993) 40 FCR 511
29 Short v FW Hercus Pty Limited (1993) 40 FCR 511 at 518
30 (1993) 40 FCR 511
31 (1998) 80 IR 345
33 PN125-140
34 Transport Workers Union of Australia v Coles Supermarkets Australia Pty Ltd, Ross J, O’Callaghan SDP, Lee C, PR533145
35 PN174
36 Respondent’s submissions on jurisdiction, filed 12 May 2013, [11]-[12]
37 PN624
38 Respondent’s submissions on jurisdiction, filed 12 May 2013, [14]
39 PN87-89. See Shop, Distributive and Allied Employees Association v Big W Discount Department Stores PR924554
40 PN196
41 PN619-620
42 PN626
43 City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426
44 Respondent’s submissions on jurisdiction, filed 12 May 2013, [16]
45 Statutory Declaration of Mr Michael John Stevens dated 21 April 2013, [2]
46 Statutory Declaration of Mr Michael John Stevens dated 21 April 2013, [4]
47 Ibid
48 PN342-348
49 Statutory Declaration of Mr Michael John Stevens dated 21 April 2013, [4]
50 Ibid
51 Ibid
52 PN255
53 PN399
54 PN288
55 Statutory Declaration of Mr Edward Paul Williams, dated 6 May 2013, [1] - [2]
56 Statutory Declaration of Mr Edward Paul Williams, dated 6 May 2013, [9]
57 Statutory Declaration of Mr Edward Paul Williams, dated 6 May 2013, [21]
58 Submissions on behalf of the Applicant, filed 22 April 2013, [24] and [44]
59 PN755
60 PN764-765
61 PN776
62 Exhibit 2 to the Statutory Declaration of Mr Michael John Stevens dated 21 April 2013, the AFP Practical Guide on Project Macer PSO redelopyment, [4]
63 Attachment L to the Statutory Declaration of Mr Edward Paul Williams, dated 6 May 2013
64 City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426
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<Price code C, AE891991 PR540074>