[2019] FWCFB 5745

The attached document replaces the document previously issued with the above code on 27 August 2019.

Error corrected in the appearances.

Associate to Vice President Hatcher

Dated 28 August 2019

Fair Work Act 2009
s.604 - Appeal of decisions

Australia and New Zealand Banking Group Limited t/a ANZ
v
Irene Guesdon
(C2019/3624)

Appeal against decision [2019] FWC 3572 of Commissioner Gregory at Melbourne on 23 May 2019 in matter number C2018/5316.

Introduction

[1] The Australian and New Zealand Banking Group Limited (ANZ) has filed an appeal against a decision issued by Commissioner Gregory on 23 May 2019 1 (Decision) concerning the proposed transfer of one of its employees, Mrs Irene Guesdon, to different work locations. The Commissioner determined in the Decision that the relocation would involve “…an unreasonable impact on Mrs Guesdon’s travel time or costs…”. ANZ contends that the Commissioner erred in a number of respects in reaching this conclusion. ANZ and Mrs Guesdon advanced their respective cases on the premise that the Decision is appealable under s 604 of the Fair Work Act 2009 subject to the grant of permission to appeal, and we accordingly will proceed to determine the matter on that basis.

[2] The facts of this matter may briefly be stated. Mrs Guesdon has been employed by ANZ since 1994, and has been located at ANZ’s Werribee Plaza branch at Hoppers Crossing in outer western Melbourne since 1997. She lives at Wyndham Vale, which is approximately eleven kilometres away. In July 2018 she was informed that her position of Service Consultant at the Werribee Plaza branch, which involved her working part-time hours on Tuesdays, Fridays and every second Saturday, was no longer required. After she declined to accept a higher-graded position (which would have required further training or retraining) at the same branch, she was offered the opportunity to relocate to ANZ’s Melton branch on Tuesdays and Fridays and to its Brimbank branch every second Saturday as a Service Consultant. Mrs Guesdon contended that this proposed relocation was not reasonable for reasons including the additional travel time and fuel costs involved with having to commute the longer distances to and from these work locations. However ANZ’s District Manager, Mr Leigh Scukovic, determined that the relocation should proceed. Mrs Guesdon’s union, the Financial Services Union (FSU), raised a dispute concerning this decision pursuant to the disputes resolution procedure in the ANZ Enterprise Agreement 2015-2016 (Agreement), and it was this dispute that was the subject of the Decision. It is not in contention that the disputes resolution procedure in the Agreement authorised the Commissioner to resolve the dispute by arbitration.

Relevant provisions of the Agreement

[3] Clause 2.4(i) of the Agreement deals with the transfer of employees to different locations by ANZ as follows:

(i) ANZ may transfer you to another work location either temporarily or permanently provided that:

(i) you are consulted;

(ii) the transfer does not involve an Unreasonable Impact on your travel time or costs; and

(iii) your personal circumstances and preferences are genuinely considered by ANZ before the decision is made.

[4] It may be noted that the above provision, and the Agreement as a whole, uses a drafting style whereby employees are referred to individually in the second person singular. This is presumably intended to create a feeling of intimacy between any employee reading the document and ANZ.

[5] The expression “Unreasonable Impact on your travel time or costs” used in paragraph (ii) of clause 2.4(i) is defined in the Agreement’s Dictionary in Schedule 5 as follows:

“Unreasonable Impact on your travel time or costs” means where ANZ determines there is an unreasonable impact on your travel time or costs, taking into account the following factors:

•  the different types of transport available to you;

•  the location of the workplace and distance from your current work location and home;

•  the amount of additional costs to you, such as having to pay additional tolls or an increase in public transport costs; and

•  any additional travelling time to the new workplace.

[6] The dispute resolution in the Agreement is contained in clause 8, which is entitled “Solve the Problem”. Clauses 8.1, General Principles, includes the following provisions:

(a) Objectives

The aim of the 'Solve the problem' dispute resolution procedure is to provide for a formal, speedy and effective process.

(b) Scope and Application of Solve the Problem

Solve the Problem is for any matters arising under this Agreement or in relation to the NES (a “problem”). You are encouraged to attempt to resolve the problem informally before you use the Solve the Problem process.

At least Steps 2 and 3 must be exhausted prior to any escalation in accordance with Step 4. Any outcome of reinstatement will not be available without ANZ's consent.

ANZ and the FSU may agree to refer questions of interpretation and application of this Agreement to the Fair Work Commission, without the need to go through any of the other steps in this section 8.

[7] Clause 8.2, Solve the Problem Process, sets out four steps in the dispute resolution process. The first three steps are internal to ANZ. The fourth step is as follows:

Step 4 - Independent Review

If you have been unable to have your problem resolved under Steps 1-3, then within 14 days of the outcome of Step 3 (or such further period that ANZ reasonably agrees to) you may refer the matter to the Fair Work Commission for conciliation.

If conciliation has been unsuccessful, the following problems may be referred to arbitration by either party:

(a) changes to your rostered hours or days of work - clause 2.4(b) and 2.8.3;

(b) changes to your work location - clause 2.4(i);

(c) temporary change to your rostered hours or days of work - clause 2.4(g);

(d) a decision by ANZ to decline a requested change to your rostered or Contracted Hours of work - clause 2.4(c);

(e) a decision by ANZ to require you to work on a public holiday - clause 4.4.4(a); or

(f) a dispute of fact arising from a decision by ANZ that you have not met the Grandfathered Eligibility Requirements referred to in clause 2.3.2.

The cases presented before the Commissioner

[8] The Decision was an exercise of the arbitral power conferred upon the Commission by paragraph (b) of Step 4 of clause 8.2 of the Agreement. The Decision relevantly concerned the precondition upon ANZ’s power to transfer contained in paragraph (ii) of clause 2.4(i) (and the associated definition in Schedule 5). Mrs Guesdon conceded that the preconditions in paragraphs (i) and (iii) of clause 2.4(i) had been satisfied.

[9] We interpolate at this point that we consider that there was a potential issue to be considered as to the proper interpretation of paragraph (ii) of clause 4.2 and the associated definition in Schedule 5, and the relationship this had to the dispute resolution function to be carried out by the Commissioner. We consider that there were at least two approaches which might reasonably have been argued:

(1) The definition contained in Schedule 5 of the expression “Unreasonable Impact on your travel time or costs” used in paragraph (ii) of clause 2.4(i) renders it the province of ANZ to determine whether such an unreasonable impact would occur. In so determining, ANZ is required to make a legally rational decision on the material available to it at the relevant time which properly takes into account the matters identified in the four bullet points in the definition. The Commission’s role in resolving a dispute about the application of paragraph (ii) of clause 2.4(i) is merely to consider whether ANZ made its determination consistent with the requirements of the Schedule 5 definition. Evidence that was not before the relevant ANZ decision-maker is not relevant or admissible for that purpose.

(2) The expression “where ANZ determines” in the Schedule 5 definition only references the fact that, sequentially, it must be ANZ that considers the question of unreasonable impact before it makes a decision to transfer an employee. The definition does not authorise ANZ to transfer an employee where, objectively speaking, there will be an unreasonable impact on the employee taking into account the four prescribed matters. The exercise of the transfer power in clause 2.4(i) is one of the very limited number of matters which, under Step 4 of clause 8.2, may be the subject of arbitration by the Commission where a dispute arises. The role of the Commission, as the heading to Step 4 indicates, is to conduct an independent review of the decision. In the case of a dispute concerning paragraph (ii) of clause 2.4(i), this requires the Commission to consider whether, objectively speaking, there would be an unreasonable impact on the relevant employee taking into account the prescribed matters. In so considering, the Commission is entitled to receive evidence bearing upon those matters whether or not such evidence was available to the relevant ANZ decision-maker.

[10] There was some conceptual confusion as to which approach would apply in the way matter was advanced by the parties in the arbitral hearing before the Commissioner. There was no agreed question posed to the Commissioner for determination. Mrs Guesdon submitted, in substance, that the task of the Commission in exercising its arbitral power was to determine for itself whether the proposed transfer would “subjectively” have an unreasonable impact on her, and she gave evidence before the Commission concerning the additional travel time and cost that would result from the transfer to support her position in this regard. However Mrs Guesdon also advanced a submission that the matter could be decided on the basis that ANZ’s decision to transfer her was invalid because its decision-maker, Mr Scukovic, had not taken into account the increased cost in fuel which she would incur contrary to the requirement in the Schedule 5 definition that “the amount of additional costs to you” be taken into account. This submission is suggestive of the quite different approach whereby the role of the Commission was confined to the consideration of whether ANZ’s decision to transfer Mrs Guesdon was made in accordance with clause 2.4(i).

[11] For its part, ANZ contended before the Commissioner that the Schedule 5 definition reserved to ANZ the determination as to whether a transfer would have an unreasonable impact on the putative transferee, that the Commission did not have the power to supplant ANZ’s decision with its own decision, and that the role of the Commission was to determine whether or not the factors identified in the definition had been taken into account by the decision-maker. However ANZ did not confine itself to demonstrating that Mr Scukovic had taken into account the specified considerations. Rather, it adduced evidence from a range of witnesses concerning the impact the transfer would have upon Mrs Guesdon. This included evidence contained in a self-described “expert witness statement” made by an external traffic consultant, Ms Deborah Donald, concerning the additional time it would take Mrs Guesdon to drive to and from ANZ’s branches at Melton and Brimbank compared to her current commute to the Werribee Plaza branch. Mr Scukovic himself gave evidence not only about his decision-making process and the matters he took into account, but also concerning matters of which he had become aware after he had made the decision that the transfer should proceed. ANZ relied upon this evidence as demonstrating that Mr Scukovic correctly determined that the transfer would not have an unreasonable impact on Mrs Guesdon’s travel time or costs.

The Decision

[12] In the Decision, the Commissioner determined that the Schedule 5 definition required an objective approach to be taken, saying:

“[63] I am satisfied, in response, that considerations of what might be reasonable or unreasonable do imply a requirement to consider those matters objectively and by reference to some objective standard. However, at the same time the relevant words in the Agreement also make specific reference to the impact ‘…on your travel time and costs.’ This implies that the particular impact on the individual concerned must also be taken into account.”

[13] In assessing the case in accordance with this approach, the Commissioner took into account and analysed the evidence adduced by the parties before him concerning the additional travel time and fuel costs which would result from the transfer of Mrs Guesdon going ahead. He made the following findings about this:

“[81] I am satisfied, based on the available evidence, that it is reasonable to arrive on the following conclusions in regard to the additional distance travelled, time taken, and cost that would be incurred by Mrs Guesdon as a consequence of the proposed locations.

Distance:

•  travel to the Melton branch would involve an additional distance of 15.8 kilometres each way, or a total of 31.6 kilometres for the return journey.

•  travel to the Brimbank branch would involve an additional distance of 25.8 kilometres each way, or a total of 51.6 kilometres for the return journey.

Time taken:

•  travel to each branch would involve an extra 35 minutes travel time each way, or a total of 70 minutes each day for the return journey. However, it is not unreasonable to conclude that these times would extend during periods of significant traffic congestion.

Additional costs:

•  travel to the Melton branch would involve additional costs of $9.50 per week.

•  travel to the Brimbank branch would involve additional costs of $15 per week.

(These estimates do not take account of additional vehicle servicing costs as no evidence in this regard was provided to the Commission.)”

[14] The Commissioner also considered issues concerning Mrs Guesdon’s age (she is 68) and her arthritic condition. On the basis of his factual findings, the Commissioner relevantly concluded as follows:

“[90] This application requires the Commission to have regard to what sub clause 2.4(i) of the Agreement requires… The Commission is accordingly now required to come to a final conclusion about the requirement contained in sub paragraph (ii), and to satisfy itself that the proposed relocations do not involve an unreasonable impact on her travel time or costs, taking into account the factors set out in the definition contained in Schedule 5 of the Agreement.

[91] It is clear at the outset that travel by car is the only viable transport option available, and the option of travel by public transport would involve an unacceptable amount of additional travel time.

[92] The second factor requires consideration of the different work locations, and the additional distance from her current work location and home. As indicated already travel to the Melton branch would involve additional travel on each day of 31.6 kilometres. Mrs Guesdon would be required to make this trip on 2 days each week. Travel to the Brimbank branch would involve an additional round-trip of 51.6 kilometres each day, although under the relocation proposal she would only be required to make this trip on one day each fortnight.

[93] These are not manifestly excessive additional travel distances, and there would evidently be many employees who by choice or necessity travel similar or further distances to work each day. However, they clearly represent a significant change from what has been the norm for Mrs Guesdon for more than 22 years. In addition, her age, and the fact that she now suffers from arthritis in both hands, are circumstances that would likely make a significant amount of additional driving more difficult.

[94] The next factor to be taken into account concerns the amount of additional cost involved. It is estimated that an amount of $9.50 would be incurred each week when Mrs Guesdon is working only at the Melton branch, and up to $15.00 per week on each second week when she works the additional shift at the Brimbank branch. There would obviously be some additional vehicle servicing costs associated with the additional travel, however, no evidence was provided in regard to what this amount might be.

[95] These are not massive additional costs, but will clearly have some impact on Mrs Guesdon’s expenditure. As indicated, no accurate estimates were provided about the additional servicing or maintenance costs that might be associated with the additional travel. However, Mrs Guesdon indicated in her witness statement that she drives a Commodore that was manufactured in 2006, and is now more than 12 years old. It is reasonable to assume that the additional travel associated with the relocations could impact significantly on a vehicle of that age.

[96] It is also noted that it was submitted on behalf of Mrs Guesdon that because the evidence indicated that no one from ANZ had attempted to estimate what additional fuel costs would be incurred as a consequence of the relocations, that it had not complied with its obligation to consider the amount of additional cost involved, and the application could be determined on the basis of this failure alone. However, the evidence of Mr Scukovic indicates that other potential cost impacts were considered, such as any possible tolls and car parking fees. It was also indicated that consideration of additional fuel costs was inherent in the considerations of the additional time and distance required to be travelled. I am not satisfied in response that any failures in this regard are sufficient alone to determine the application in favour of Mrs Guesdon.

[97] The final consideration concerns the amount of additional travel time from home to the proposed new work locations. This is estimated to be at least an additional 35 minutes travel time each way, or a total of more than 70 minutes for the daily return journey. However, it is not unreasonable to conclude that these times would often extend during periods of significant traffic congestion. For example, Mrs Guesdon indicated in her evidence that her existing average daily travel time of around 15 minutes could, on occasions, blow out to around 30 minutes because of additional traffic on the road.

. . .

[99] However, it is also acknowledged again that many employees experience travel times of around one hour from home to work each day, and from work to home again at the end of the day. In this context it can be said that there is nothing unusual in what Mrs Guesdon is now being confronted with.

[100] However, the extended travel times can obviously be viewed differently when contrasted with what Mrs Guesdon has been accustomed to. She has had what might be described on the one hand as the good fortune to work at a branch of the Bank located only 15 minutes from her home, based on the average time taken to travel to work. This situation has existed for more than 22 years. A change, which involves travel times of around one hour each way, is clearly a significant change in this context, particularly given her age and condition. Mrs Guesdon indicated that she may in fact not be able to take on the shift at the Brimbank branch, given the travel involved, meaning she would also suffer a loss of income as a consequence.”

[15] The final conclusion reached by the Commissioner in paragraph [102] of the Decision was that “I am satisfied, in conclusion, that the proposed relocations do involve an unreasonable impact on Mrs Guesdon’s travel time or costs as defined in Schedule 5”. 

Appellant’s contentions of error

[16] ANZ’s appeal grounds and appeal submissions contend, in summary, that the Commissioner erred in the following respects:

(1) The Commissioner did not take into account Mrs Guesdon’s contract of service, which gave ANZ an unrestricted right to transfer her (subject to the payment of travel costs in certain circumstances).

(2) The Commissioner erred by taking as a reference point in paragraph [100] of the Decision what Mrs Guesdon “has become accustomed to”.

(3) The Commissioner mistook the facts and/or made findings not supported by evidence as to:

(a) the impact of Mrs Guesdon’s age and arthritis on driving the additional distance to Melton and Brimbank;

(b) the additional travelling time from Mrs Guesdon’s home to the Melton and Brimbank branches compared to her current commuting time to the Werribee Plaza branch;

(c) the regularity or otherwise of traffic congestion during travel from Mrs Guesdon’s home to the Melton and Brimbank branches; and

(d) the maintenance costs of Mrs Guesdon servicing her vehicle.

(4) The Commissioner took into account irrelevant matters in his consideration of “Unreasonable Impact…”, namely the length of time Mrs Guesdon had worked at the Werribee Plaza branch, the travelling time to Melton and Brimbank compared to her current travelling time (rather than the range of travelling times from her home to each location), and the impact of Mrs Guesdon’s age and arthritis on her driving the additional distances required.

(5) The Commissioner failed to give weight to material consideration and ignored relevant material, namely:

(a) the contract of service;

(b) the absence of evidence concerning the effect of arthritis on Mrs Guesdon’s driving capacity;

(c) the unchallenged evidence of Ms Donald concerning Mrs Guesdon’s existing commute time to the Werribee Plaza branch;

(d) the unchallenged evidence of Ms Donald concerning the additional driving time that would be required by the transfer; and

(e) unchallenged evidence of Mr Scukovic concerning the size and geographical spread of the Melbourne West district and the travelling time and costs between ANZ branches in that district, ANZ’s operational and organisational requirements, where other employees lived in the district and their travel times to work, and the easy and non-congested nature of the drive to Melton that would be required.

(6) The Commissioner failed to give reasons for resolving the contrasting evidence before him concerning the travel time to Melton and Brimbank.

Consideration

[17] As earlier stated, it was not in dispute between the parties that it was necessary for ANZ to obtain permission to appeal pursuant to s 604(1) of the FW Act. Section 604(2) requires the Commission to grant permission to appeal if it is satisfied that it is in the public interest to do so. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.² The public interest is not satisfied simply by the identification of error or a preference for a different result.³ In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench identified some of the considerations that may enliven the public interest:

“... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...”4

[18] Aside from the special case in s 604(2), the grounds for granting permission to appeal are not confined. Considerations traditionally adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration, and that substantial injustice may result if leave is refused.⁵ It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.⁶ However, the fact that the member made an error is not necessarily a sufficient basis to grant permission to appeal.⁷

[19] We do not consider that this is a case where permission to appeal is required to be granted under s 604(2) or should otherwise be granted on discretionary grounds. We have reached that conclusion for a number of reasons. First, we do not consider that the Decision raises any issue of importance or general application that would enliven the public interest. It concerned the proposed transfer of one particular employee pursuant to a provision of an enterprise agreement specific to ANZ. Even though it may be accepted that ANZ is a very large employer which transfers employees from one workplace to another with reasonable frequency, we do not consider that the Decision has any precedential value in that context. The Decision, for reasons which we will explain shortly, does not stand for any particular interpretation of paragraph (ii) of clause 2.4(i) of the Agreement and the associated definition in Schedule 5. The Commissioner’s application of these provisions of the Agreement was confined to the particular circumstances of Mrs Guesdon’s case, as he emphasised in the Decision. The Commissioner did not seek to establish any general standard as to when a proposed transfer will cause an unreasonable impact on an employee’s travel time and costs, and indeed the Commissioner found that it was only circumstances peculiar to Mrs Guesdon which rendered unreasonable what might otherwise be a reasonable impact for other employees.

[20] Second, we are not satisfied that any substantial injustice would ensue to ANZ if permission to appeal is not granted. The “worst-case” result of the Decision may be that ANZ will need to retrench Mrs Guesdon and pay her redundancy entitlements. If so, that would not in our view be a significant burden for an employer the size of ANZ. There may in any event be other alternatives which would allow ANZ to continue to usefully employ Mrs Guesdon.

[21] Third, the grounds of appeal are not sufficiently arguable to justify the grant of permission to appeal. Its contentions raise, on proper analysis, a small number of issues under a number of different guises so that, for example, alleged errors on the critical issues of fact are also said to constitute a failure to take into account relevant material and consideration of irrelevant matter. We deal with the main matters raised briefly as follows:

(1) It does not seem to us that Mrs Guesdon’s 1994 contract of employment, which conferred on ANZ a largely unrestricted power to direct her transfer, was a necessarily relevant consideration. By entering into the Agreement, ANZ agreed to subject itself to the preconditions for transfer contained in clause 2.4(i) and to supplant the transfer power in the contract to that extent.

(2) We consider that it was clearly available for the Commissioner to find, as he did in paragraph [97] of the Decision, that Mrs Guesdon’s existing commute to the Werribee Plaza branch usually took about 15 minutes but could extend to 30 minutes in heavier traffic. Mrs Guesdon, who had been undertaking this commute for 22 years, gave direct evidence to that effect, and it was open to the Commissioner to accept that evidence. We note that ANZ’s own witness, Ms Susan Grant, who was the manager of the Werribee Plaza branch and described herself as “familiar with roads and surrounding areas in the Melbourne West district” and often drove from Werribee through Wyndham Vale and on to Melton, estimated that Mrs Guesdon’s current commute would take about ten minutes. 8 The Commissioner was not obliged to accept or rely upon the “expert witness” report of Ms Donald, which did no more than measure travel times based on Google Maps predictions and the driving of the relevant routes by her or somebody else on a small number of occasions.

(3) It was similarly clearly open to the Commissioner to find in paragraphs [81] and [97] of the Decision that travelling to Melton or Brimbank would take Mrs Guesdon at least an additional 35 minutes, and that this might be longer on periods of significant traffic congestion. Mrs Guesdon gave evidence that she trialled the routes, and took 52 minutes in light traffic to get to Melton and 50 minutes in light traffic to get to Brimbank, and the Commissioner was entitled to accept this evidence. That amounted to 37 minutes longer than the usual commute to Werribee Plaza in the case of Melton, and 35 minutes in the case of Brimbank. Ms Grant’s estimate of an additional 30 minutes to travel to Melton or Brimbank was broadly consistent with Mrs Guesdon’s evidence. 9 The Commissioner’s conclusion that the travelling time would take longer in heavy traffic was, we consider, a statement of the obvious. Again, the Commissioner was not obliged to accept the evidence of Ms Donald, which measured travel times to and from Melton and Brimbank on a small number of occasions, and on some (but not all) of the occasions recorded travelling times significantly below that experienced by Mrs Guesdon. It must be observed that the task was to consider how long Mrs Guesdon - a 68-year old with arthritic hands - would take to drive the additional distance, not how long it would take some hypothetical ordinary driver. Although, as the Commissioner found, the task of assessing the reasonableness or otherwise of the impact was to be conducted objectively, it was the impact “on your travel time or costs”10 - that is, Mrs Guesdon’s - which was required to be considered, as the Commissioner correctly observed in paragraph [63] of the Decision.

(4) That there were some significant differences in the degree of traffic congestion during travel from Mrs Guesdon’s home to Melton and Brimbank is supported by Ms Donald’s own statement, which shows significant differences in travel times on different days.

(5) It may be accepted that there was no direct evidence that Mrs Guesdon’s arthritis would affect her driving capacity. However Mrs Guesdon did give evidence that she was “finding it harder to drive longer distances due to my age” and that as a result of her arthritis she did “suffer with pain, my hands are very deformed, as you can see…”. 11 Accordingly we consider that it was plainly reasonable for the Commissioner to surmise in paragraph [93] of the Decision that Mrs Guesdon’s arthritis “would likely make a significant amount of additional driving more difficult”. This was relevant to the reasonableness of the increased travelling time. In any event, this conclusion was not critical to the overall conclusion reached by the Commissioner.

(6) We do not accept that the Commissioner took “as a reference point” what Mrs Guesdon had become accustomed to, or that the length of time she had commuted to work at the Werribee Plaza branch was irrelevant. He treated these matters as bearing upon the reasonableness of the impact of the change to be imposed on Mrs Guesdon, and they were plainly relevant matters. By way of hypothetical contrast, if Mrs Guesdon had commuted to the Melton branch for 22 years, had been transferred to work at the Werribee Plaza branch for a short period, and was then directed to transfer back to Melton, this would give a totally different complexion to the reasonableness of the impact of increased travel time and costs.

(7) The proposition that the Commissioner gave insufficient reasons patently has no merit. The reasoning in the Decision allows for a proper understanding of the basis upon which the Commissioner reached the conclusion that he did.

[22] Fourth, although we have earlier in this decision adverted to a potential issue concerning the interpretation of the Agreement, that issue does not properly arise for consideration in ANZ’s appeal. Paragraph [90] of the Decision, set out above, discloses that the Commissioner considered that the role of the Commission in arbitrating the dispute was to “satisfy itself that the proposed relocations do not involve an unreasonable impact on [Mrs Guesdon’s] travel time and costs…”. This approach was consistent with the second of the two possible approaches we have identified in paragraph [9] above, although we note that the Commissioner went on in paragraph [96] to consider and reject Mr Guesdon’s contention that the proposed transfer was invalid because the ANZ decision-maker did not take into account the increase to her travel costs. However the Commissioner did not take this approach on the basis of any consideration of the proper interpretation of the relevant provisions of the Agreement, but merely determined the matter within the framework of the respective cases presented by the parties. As earlier explained, both parties adduced evidence to support a particular conclusion as to the proper application of paragraph (ii) of clause 2.4(i) rather than simply engaging in a review of the decision-making process undertaken by Mr Scukovic.

[23] ANZ’s grounds of appeal do not contend that the Commissioner erred in taking the approach that he did. Notwithstanding that during the hearing of the appeal we raised with the parties the first of the possible alternative interpretational approaches identified in paragraph [9] above, ANZ declined to positively embrace that approach or to seek leave to amend its grounds of appeal. In one sense that is understandable in that ANZ’s case on appeal sought to demonstrate appealable error by reference to the evidence it adduced in the proceedings below. But the consequence is that the potential issue of interpretation of the Agreement does not arise for consideration in the appeal.

[24] In any event, even if that issue did arise in the appeal and we concluded that the first of the two possible approaches was the correct one, it would not assist ANZ’s position. The Schedule 5 definition requires that “the amount of additional costs to you” be taken into account in determining whether there is an unreasonable impact on travel time or costs. If the task were merely to review whether Mr Scukovic determined the issue in accordance with this requirement, then the answer would have to be “no” because the evidence makes it clear that he did not consider the amount of the additional fuel cost that would be associated with Mrs Guesdon having to travel a further distance. There was no dispute that the only practicable way for Mrs Guesdon to commute to Melton and Brimbank was by driving her own vehicle, so the requirement to consider additional costs necessarily focused on the amount of the additional fuel costs involved. In his witness statement Mr Scukovic described with care and detail the matters he took into account in determining that Mrs Guesdon should be transferred, and he made no mention of having considered the additional cost of fuel at all. In cross-examination, Mr Scukovic confirmed that while he took into account that the transfer would not involve additional toll or parking costs, he never attempted to quantify the amount of additional fuel costs, and he did not identify any specific matter which he took into account which was not referred to in his witness statement. 12 He re-affirmed in re-examination that he did not do any analysis of the fuel costs.13 His re-examination then ended with the following:

“What do the costs - sorry, I withdraw that.  When you're thinking about the distance, what did the distance - did the distance tell you anything about costs?---Well, in this case, yes, it was what I considered a short increase in time in terms of that and so I considered, yes, it would be a cost, but it wouldn't be a substantial increase to the cost because she currently drives now from where she is to the Werribee Plaza branch.”

[25] The Commissioner appears to have taken the view (in paragraph [96] of the Decision, set out above) that this disclosed the requisite consideration. We do not agree. The answer given (in response to a leading question) discloses no consideration of the actual amount of the additional fuel cost, does not even mention fuel, is inconsistent with Mr Scukovic’s clearly articulated witness statement and is entirely imprecise. This is not to suggest that it was necessary for Mr Scukovic to correctly calculate the precise additional fuel cost to the last dollar and cent; rather our conclusion is that there is no credible evidence that he seriously considered the amount of the additional fuel cost at all in circumstances where there would be a more than fourfold increase in the distance required to be travelled.

Conclusion

[26] Permission to appeal is refused.

VICE PRESIDENT

Appearances:

M Tamvakologos, solicitor, for ANZ Banking Group

T Slevin of Counsel for Irene Guesdon

Hearing details:

2019.

19 August,

Sydney.

Printed by authority of the Commonwealth Government Printer

<PR711435>

 1   [2019] FWC 3572

2 Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]

3 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27]

4 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]

5 ]  FCA 1404 ,  89 FCR 200 , 84 IR 314  at 220; and Wan v AIRC  [2001] FCA 1803, 116 FCR 481 at [26] 

6 [2001] FCA 1803, 116 FCR 481 at [30] 

7 NSW Bar Association v Brett McAuliffe; Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

 8   Transcript 27 November 2018, PN 150

 9   Transcript 27 November 2018, PNs 148-150

 10   Underlining added

 11   Transcript 27 November 2018, PN 81

 12   Transcript 27 November 2018, PNs 266-275

 13   Transcript 27 November 2018, PN 291