Bebawi v Australian Government [2016] FWC 364 (19 January 2016) [2016] FWC 364 [Note: An appeal pursuant to s.604 (C2016/2418) was lodged against this decision - refer to Full Bench decision dated 12 May 2016 [ [2016] FWCFB 1864 ] for result of appeal.] FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.739 —Dispute resolution Victor Bebawi v Australian Government T/A Department of Defence (C2015/4780) Commonwealth employment COMMISSIONER JOHNS SYDNEY, 19 JANUARY 2016 Alleged dispute concerning eligibility for excess travel time entitlements under the Defence Enterprise Collective Agreement 2012-2014. Introduction [1] This decision involves an application brought by Victor Bebawi ( applicant ) under section 739 of the Fair Work Act 2009 ( FW Act ). [2] The respondent is the Commonwealth of Australia represented by the Department of Defence ( respondent / Department ). [3] The parties are covered by the Defence Enterprise Collective Agreement 2012-2014 ( Agreement / DECA ). The dispute arises out of the operation of clause F2.12 1 and F2.13 of the Agreement which provides as follows: F2.12 Excess travelling time (ETT). Employees performing duties classified as APS1-APS6 are eligible to claim ETT when they are: a. temporarily relocated; and b. not receiving an approved travel budget; and c. incurring additional travelling time (as per paragraph F2.13). F2.13 ETT is not to be paid unless the additional time spent in travelling exceeds one half hour in any day or a total of two and one half hours in any fortnight. ETT is paid at the rate of single time for travel on Monday to Saturday, and time and one half for travel on a Sunday or public holiday. Eligible employees may elect to receive a credit of flextime or use TOIL (Time off in lieu) as an alternative to payment of ETT. [4] The respondent also has a Workplace Relations Manual ( WRM ). Chapter 16 Part 4, of the WRM deals with Excess Travel Time. [5] In short the applicant claims he has not been compensated appropriately for excess travel time and payment of excess fares associated with a reassignment of duties that occurred on 28 October 2013. The reassignment of duties included a physical relocation of the applicant from Moorebank to Defence Plaza Sydney ( DPS ) located in Pitt Street, Sydney (the Relocation ). [6] The applicant says that he was temporarily relocated to DPS, did not receive an approved travel budget and that, consequently, he incurred an, …additional 1 hour and 10 minutes of travel time from [his] residential address in Holsworthy to Town Hall station including 15-20 minute walk from home to the station and 5 minute walk from the station to DPS. This represents 2 hours and 20 minutes every working day. [7] The DECA contains a dispute prevention settlement procedure in Part I.4. Paragraph I.4.12.b invests the Commission with power to resolve disputes by way of arbitration. [8] The application was listed for hearing on 26 October 2015. At the hearing the applicant represented himself and the respondent was represented by Ms K Henley. [9] The parties agreed that the Commission could determine the matter “on the papers” 2 after the making of submissions about what documents were relevant to the issue in dispute between the parties. The applicant made submissions on 8 November 2015 and respondent made submissions on 16 November 2015. Background [10] The following matters were either common ground between the parties or not otherwise contested: a) The applicant is an APS 6 employee of the respondent. On commencing employment with the Department on 22 August 2011 the applicant was employed as a Contract Governance Officer. b) Prior to the decision to relocate the applicant to DPS he was employed at Moorebank. His 1 st level supervisor was Ms L Cairns, Contract Manager, based at the Royal Australian Air Force Williamtown. His 2 nd level supervisor was Ms D Reddy, Director Contracts. c) From early 2012 the applicant advised Ms Cairns about difficulties he was experiencing with another APS 6 employee ( S ) at Moorebank. d) By May 2013 events had developed such that it was necessary for the applicant and Mr S to participate in a facilitated conversation undertaken by a Fairness and Resolution Practitioner. e) On 3 June 2013 the facilitator advised Ms Cairns that, in her opinion, the work relationship between the applicant and Mr S was “very toxic and is probably beyond repair”. f) On 19 July 2013 an Acting Director, Business Operations Defence Support and Performance, advised Ms Cairns that, in his opinion, the work relationship between the applicant and Mr S was untenable and a possible solution was relocating the applicant to DPS. g) On 10 September 2013 at a performance feedback session Ms Cairns advised the applicant that he would be relocated to DPS. The applicant claims that he “was told in the meeting that [he had] no choice but to move.” h) On 12 September 2013 the applicant wrote to Ms Reddy to complain about ill-treatment. He claimed that Ms Cairns was targeting him for relocation from Moorebank to DPS. He wrote “I understand that the DECA gives the organisation the right to move people but this should be done taking into account the principles of fairness and consultation.” i) On 24 September 2013 Ms Reddy replied to the applicant. Ms Reddy advised the applicant that a QA officer would assess his allegation about unacceptable behaviour. Ms Reddy further advised the applicant that he was being relocated to DPS because of the belief that the transfer was in his interests and those of the Department; in particular, it was believed that his services could be more productively used to undertake a “body of higher priority work” that would also involve benefits for him from more effective supervision and mentoring from experienced team managers. Ms Reddy noted that management needed to resolve the highly dysfunctional working relationship between him and Mr S. j) On 10 October 2013 the QA officer found there was no conclusive evidence of unacceptable behaviour and noted that the relationship between the applicant and Mr S “is beyond repair and they should not be working in the same area”. k) On 14 October 2013 the applicant attended a meeting with Ms Cairns and other officers from the Department at which the Relocation was discussed. l) On 18 October 2013 Ms Cairns wrote to the applicant. Ms Cairns noted the meeting that had occurred on 14 October 2013 and wrote, At that meeting was agreed that you would transfer to Defence Plaza. In all the circumstances it has been decided that your transfer to the Defence Plaza Sydney should not only proceed but it should happen without further delay. Your duties in the Defence Plaza are set out below: … You will be supervised by John Moss, who is managing the project. You are directed to report to him at level 19 in the Defence Plaza Sydney on Monday, 28 October 2013. … The time taken to travel to Defence Plaza will not form part of your work day. m) On 21 October 2013 the applicant replied to Ms Cairns in the following terms, Since a decision has been made to transfer me to Sydney, I will commence work in the Defence Plaza Sydney from Monday 28 October as directed. However I would like to add that I have never agreed to transfer to Sydney (including during the meeting that took place on 14 th October). I have not even been asked to choose and have expressed my objection to the transfer in many occasions. n) On 28 October 2013 the applicant commenced working from DPS. o) On 5 December 2013 the applicant sought a Review of Actions of the Relocation. The review was conducted by a delegate of the Secretary of the Department ( RoA Delegate ). p) On 13 March 2014 the RoA Delegate confirmed the Relocation. q) On 20 March 2014 the applicant submitted a secondary review application to the Merit Protection Commissioner ( MPC ). r) On 10 July 2014 the Delegate of the MPC recommended under Public Service Regulation 5.3I that the Department confirm the action under review. The Delegate of the MPC, … acknowledged that a commute of one hour to work would be a significant change for [the applicant] and would impact upon his work-life balance, noting that he has four school-aged children. However, this office agrees with [Ms Reddy’s] view that such a commute is not unusual in Sydney, and is within the acceptable limits for travel to work. Information before this office also indicates that [the applicant] was assessed as physically able to undertake the travel required. s) On 17 July 2014 the applicant first raised whether he had an entitlement to assistance under the Staff Transition Plan ( STP ) or, in the alternative, assistance in relation to excess travel time. t) On 13 August 2014 the applicant was advised that he had no entitlement because “… there was no suggestion that your transfer to DPS on 28 October 2013 was of a temporary nature…” 3 u) On 23 September 2014 the applicant sort a review of the decision that he had no entitlement to assistance. The process of review that followed is not relevant to the decision presently before the Commission, however, it can be noted that the applicant remains dissatisfied and that dissatisfaction ultimately led to this application being made to the Commission on 15 July 2015. Issue in dispute [11] The issue in dispute is whether the transfer that occurred on 28 October 2013 can be characterised as a temporary relocation. If it was a temporary relocation then the applicant satisfies the eligibility criteria in clause F2.12.a of the DECA. Submissions Applicant [12] The applicant submitted that he was eligible for the entitlements under the DECA because: a) he was relocated to DPS “to perform tasks in preparation for the Base Services Retender ( BSR ). He was asked to undertake “data collection/spatial data correction in preparation for the BSR.” b) “Employees who are required to travel to a different location to participate in preparations for the BSR receive reimbursement of travel costs (or use of vehicles to travel) and the associated travel time was undertaken during working time or considered working time.” c) Ms Cairns “who directed the applicant to relocate does not hold appropriate delegation to reassign the applicant outside her line of supervision. The applicant was directed to report to another employee who is not within Ms Cairns’ line of supervision.” The applicant submitted that, The Defence Public Service Framework Delegations 2014 allows EL 1 delegates (including Ms Cairns) to make decisions under section 25 of the APS act only in relation to employees and positions in the delegate’s line of supervision. It reads in Schedule, page 4 “The delegate may only make this decision in relation to employees and positions in the delegate’s line of supervision.” Following the relocation the applicant’s 1 st level supervisor was Mr John Moss and his 2 nd level supervisor was Mr Anthony Highley. Both Mr Moss and Mr Highley work for Estate and Facility Services ( EFS ). They do not work for the Directorate of Contract Governance and they are outside Ms Cairns’ line supervision. [13] The applicant submitted that the transfer that occurred on 28 October 2013 was temporary because: a) the information in the decision to relocate him to DPS gave no indication that the relocation was permanent; b) as there was no indication in the decision that the Relocation was permanent; his substantive position remained unchanged, i.e. “Contract Governance Officer” located at Moorebank; c) the decision to relocate referred to the BSR and the BSR can only be temporary because it is of a limited duration; d) his records with the Defence Information System continued to show his substantive position as “Contract Governance Officer” and his original work location as Moorebank until he was reassigned to the position of “Administration Officer with the Directorate of Data and Information Governance” as a result of the DSO changes and implementation of the STP; and e) his relocation to DPS occurred around one year prior to the implementation of the STP and the Commonwealth has legal obligations to keep accurate employment records. Respondent [14] The respondent submitted that the applicant is not entitled to be compensated under the DECA because the reassignment to the DPS was of a permanent nature. In answer to the submissions made by the applicant, the respondent submitted that: a) as with any organisation, many taskings have a finite life. The fact that the initial work he was given had a finite life did not make the transfer temporary; b) the adjustment of changed arrangements in the Department’s information system was not considered a priority and this did not invalidate the fact that he had been transferred within Defence to another role; and c) the relocation was not due to an organisational restructure but to resolve a dysfunctional working relationship and an assessment by the applicant’s managers that in respect of his overall effectiveness, he needed closer supervision. [15] In answer to the applicant’s submission that Ms Cairns did not have the delegation to decide to relocate him the Department submitted that “Ms Reddy is classified as an Executive Level 2, and was the applicant’s reporting line at the time that the decision to reassign his duties was made. The decision to reassign duties was made by Ms Reddy, in accordance with section 25 of the PS Act and the Defence Public Service Framework Delegations 2014 (No. 11). 4 The Department submitted that “this authority does not restrict a decision maker, in this situation, Ms Reddy from reassigning duties outside their line of supervision”. Consideration [16] The first issue which needs to be the clarified is who made the Relocation decision. The applicant complains about the Relocation in part because he says Ms Cairns did not have the authority to make the decision. The respondent says the decision maker was Ms Reddy. [17] The chronology (above) demonstrates that on 23 September 2013 Ms Reddy advised the applicant that he was being relocated to DPS because of the belief that the transfer was in his interests and those of the Department; in particular, it was believed that his services could be more productively used to undertake a “body of higher priority work” that would also involve benefits for him from more effective supervision and mentoring from experienced team managers. Ms Reddy noted that management needed to resolve the highly dysfunctional working relationship between him and Mr S. [18] Consequently, the Commission, as presently constituted, finds as a matter of fact that Ms Reddy was the delegate who made the Relocation decision. [19] Consequently, the applicant’s complaints about Ms Cairns’ lack of delegated authority are misplaced. Even if the direction to relocate that was outside the delegated authority of the decision maker that would not cause a purported permanent relocation to become a temporary relocation. [20] In any case, on 13 March 2014 the RoA Delegate confirmed the Relocation decision. By reason of the delegation given to the RoA Delegate her decision was a decision of the Agency Head (i.e. the Secretary of the Department) to confirm the action under section 5.27(3)(a) of the Public Service Regulations 1999 . There can be no question that the RoA Delegate had the authority to decide to relocate the applicant. If there was any defect in the decision made by Ms Reddy (and I make no finding that there was) it was cured by the decision of the RoA Delegate. The same would apply if the decision maker was Ms Cairns. [21] It is clear that no document provided to the applicant at or before the Relocation expressly used the word “permanent”. There was also no express use of the word “temporary”. [22] However, the Relocation decision must be construed having regard to the events leading up to the relocation on 28 October 2013. Ms Reddy wanted to resolve the dysfunctional working relationship that had developed between the applicant and Mr S. That was Ms Reddy’s primary motivation and there is nothing in the evidence of the events that preceded the Relocation decision which establishes that Ms Reddy was deciding upon a temporary fix to that dysfunctional working relationship. [23] Further, the conduct of the applicant after the Relocation (which included: a) his objection to the relocation in the email he sent on 21 October 2013; and b) on two occasions, as was his right, seeking a review of the decision to relocate him), demonstrates that, at the time of the Relocation, and thereafter (until about 17 July 2014) the applicant was under no illusion that the Relocation was anything but permanent. For him to suggest that he did not understand it that was permanent or to submit that it was the intention of the Department that the Relocation be temporary, is disingenuous. [24] The Commission, as presently constituted, is satisfied that, on all the evidence before it, the decision to relocate the applicant was not of a temporary nature. [25] For completeness, the applicant’s submission that the nature of the duties assigned him means that the reassignment was temporary is also misconceived. It is not uncommon for employees to be given duties of a temporary nature from time to time in the course of their job. That does not make their job (or the location of it) a temporary one. Conclusion [26] Having considered all that has been submitted in these proceedings for the reasons set out above, the Commission, as presently constituted, has determined that the applicant is not entitled to the excess travel time allowance provided for in the DECA. [27] The applicant’s application under s.739 is dismissed. An order to that effect will be issued with this decision. COMMISSIONER Appearances : Applicant represented himself. Ms K Henley for the respondent. Hearing details: Sydney 26 October 2015. Final written submissions: Applicant , 8 November 2015. Respondent , 16 November 2015. 1 Note: in his F10 application the applicant cited the ‘entitlement’ in the respondent’s Workplace Relations Manual (WRM) rather than the DECA. Clause F2.12 of the DECA is the same as paragraph 16.4.0.7 in the WRM. In this decision I use the citation from the DECA. 2 Transcript PN8-9. 3 See email from Peter McLenaghan, Regional Planning and Business Improvement Manager, Department of Defence to the applicant dated 13 August 2014. 4 The Defence Public Service Framework Delegations 2014 (No. 11) were made on 1 October 2014. The decision to relocate the applicant was made by Ms Reddy on or about 23 September 2013. 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