Western Australian Industrial Relations Commission

Appeal over the payment of a Forensic Qualifications Allowance

 

The Full Bench has dismissed an appeal against a decision of the Industrial Magistrate where it was found that the appellant was not entitled to be paid an allowance. The appellant had received the Forensic Qualifications Allowance (FQA) since August 2010 while working in the Forensics Division of the Western Australian Police Force. However, in April 2015 the appellant was transferred to a District Forensic Information Officer position which the Commissioner of Police considered did not attract the FQA and payment of the allowance to the appellant ceased.

At the hearing in first instance, the learned Magistrate was not persuaded that the Commissioner of Police had failed to properly exercise his discretion and dismissed the application. The appellant appealed this decision on the ground that the learned Magistrate erred in law when dismissing his claim.

The majority of the Full Bench (Senior Commissioner Kenner with Commissioner Walkington agreeing) found that the breadth of the words used by the draftsperson in clause 17(12) of the Western Australian Police Industrial Agreement 2006 indicated that the parties to the Agreement intended to confer the ultimate discretion on whether to approve the payment of the FQA on the Commissioner of Police.

The Full Bench determined that the learned Magistrate erred when she rejected the appellant's contention, that the position descriptions should be given significant weight and little, if any, relevance should be given to the approved list of positions that the Commissioner of Police considered eligible to attract payment of the FQA. Senior Commissioner Kenner stated that the approved list document could not be given any weight because it was created for internal use by the Commissioner of Police's Employee Relations staff well after the making of the Agreement. Further, the Full Bench found that the certified position descriptions provided the best evidence of the requirements of the roles because they had been certified by the Commissioner of Police as fully and accurately describing its requirements.

The effect of the Guidelines of Acceptable Practice on the determination of any FQA claim was found by the Full Bench to not alter the proper interpretation and application of the Agreement. Additionally, the Full Bench found that the appellant did not satisfy the eligibility criteria because the Commissioner of Police had not deemed him to be working in the assessed field as provided for in the clause.

Commissioner Matthews found that after the specified criteria in cl 17(12)(a) had been met then the respondent could exercise his discretion on whether to pay or not pay the FQA. Matthews C added that the respondent could withdraw his FQA approval whether the facts in the specified criteria existed or not.

The Full Bench concluded that the appellant had not demonstrated that the learned Magistrate erred in her conclusion that the Commissioner of Police acted reasonably in the exercise of his discretion.

The decision can be read here.

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