[2014] FWC 8702
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.739—Application to deal with a dispute

The Police Federation of Australia
v
Victoria Police/Chief Commissioner of Police
(C2013/6719)

State and Territory government administration

DEPUTY PRESIDENT SMITH

MELBOURNE, 5 DECEMBER 2014

Alleged dispute concerning clause 90—relocation expenses as a result of transfer and clause 93—disputes in relation to relocation expenses.

Introduction

[1] This decision deals with an application by the Police Federation of Australia (PFA) for the Commission to resolve a dispute about the proper application of clauses 90 and 93 of the Victorian Police Force Enterprise Agreement 2011 [AE889678] (the Agreement).

[2] Those clauses deal with;

90—Relocation expenses as a result of the transfer
93—Disputes in relation to relocation expenses.

[3] The particular issue which gives rise to this dispute relates to the relocation by Leading Senior Constable (LSC) Fairweather from his residential address. Clause 93 of the Agreement empowers the Commission to resolve disputes where they arise. There is no issue as to the jurisdiction of the Commission to deal with this matter.

[4] LSC Fairweather has been a member of Victoria Police for 29 years. The facts of this case are these:

The argument

[5] The PFA argue that the Commission should determine that LSC Fairweather should be reimbursed his relocation expenses in transferring from his workplace at the transport branch in Brunswick to the Kilmore police station.

[6] It is argued that LSC Fairweather:

[7] For Victoria Police it was argued that, firstly, the decision by LSC Fairweather to move to Kilmore was for personal reasons and had been made many months before he was transferred. In this connection Victoria Police referred to an e-mail 5 where he communicated that he was going to move and enquired as to whether or not there were any vacancies in Kilmore.

[8] It was also argued that there are still sworn members at the Transport Branch and that it was not true to suggest that all positions were being abolished. It was put that sworn members were being returned to operational duties.

[9] Victoria Police then argued that the distance travelled was not unreasonable and that there was no requirement for LSC Fairweather to perform availability in the general duties uniform position at Kilmore.

[10] Finally it was argued that that the excess travel provisions are designed to provide benefits to employees who are required to perform temporary work.

[11] Whilst this is not an exhaustive review of the arguments it is a distillation of the issues in contention.

Conclusion

[12] I firstly make this observation. There was uncertainty in relation to the future of sworn officers in the Transport Branch. LSC Fairweather’s position was abolished. 6 He was entitled to take steps to protect his career. Whilst his desire to relocate to Kilmore was no doubt an ingredient in the posting he pursued, nonetheless he proceeded correctly to seek the transfer which occurred as “reasonable offer of redeployment”. He was given a posting. His personal preference was fortuitous.

[13] In the process that is stage one.

[14] The next matter is whether or not he is entitled to relocation expenses. The Agreement provides that the starting point is the opinion of the employer as to whether or not the employee is reasonably required to change an ordinary place of residence. The opinion of the employer is clear. It does not believe that LSC Fairweather is reasonably required to change his place of residence. Where a discretionary decision is available under an agreement it must be assumed that it is reasonably exercised. 7

[15] To support this discretionary decision making Victoria Police has produced a policy. The PFA states that this policy was developed without its approval. This doesn’t necessarily vitiate the terms of the policy as it is a policy determined by the employer. However a critical element of the policy is that an employee, before relocation takes place, must seek approval. This is a sensible and necessary process. If an employee is to expend funds, then it is reasonable to know beforehand if the employer is going to reimburse the expenditure. This may or may not impact upon the decision to relocate. In this case LSC Fairweather did not seek approval before relocating.

[16] I find that such an element of the policy is a precondition to its operation and provides a sensible and reasonable base upon which to exercise discretion. This is a factor in favour of Victoria Police.

[17] The next concern is the distance to be travelled as it related to:

[18] It is the evidence of Victoria Police that this was considered knowing the time that LSC Fairweather would take to attend at Kilmore. It is clear that these are not requirements which would have been visited upon LSC Fairweather. To put such a requirement on him in the knowledge that either he could not comply, or that a failure to be on availability would inhibit roster flexibility, would have been unconscionable. Victoria Police could not have had it both ways.

[19] The other matter relates to the part payment of the relocation expenses. In this connection I accept the evidence of Mr Nicolaou, Senior HR Consultant — Workplace Relations, Human Resource Department, Victoria Police, that an error was made. The facts of this case do indicate a disparate approach between areas of responsibility. I find that these errors do not create an obligation under the Agreement.

[20] All in all, I am unable to conclude that the decision now not to pay relocation expenses under clause 90 has been unreasonably made.

ith DP seal.tif

DEPUTY PRESIDENT

Appearances:

N. Baldini for The Police Federation of Australia.

J. Baker on behalf of Victoria Police.

Hearing details:

2014.

Melbourne:

October, 14.

Further written submissions:

Victoria Police, 5 November 2014.

The Police Federation of Australia, 6 November 2014.

 1   Exhibit PFA1; Attachment 1.

 2   Exhibit VicPol7; Attachment 1.

 3   Ibid attachment 2.

 4   Exhibit VicPol1; Paragraphs 5 and 6.

 5   Exhibit Vicpol8; Attachment 1.

 6   Exhibit VicPol6—Witness Statement of Acting Divisional Commander Trimble paragraph 2.

 7   See Bernard Terence Bastian Pulle v Commonwealth of Australia acting through the Secretary of the Department of Parliamentary Services [2011] FWA 7462. I also note the decision of Adamson J in Bartlett v Australia and New Zealand Banking Group Limited [2014] NSWSC 1662. This decision gave weight to the phase “in the opinion of” when considering the level of proof needed.

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