WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

PARTIES MARK KEVIN SWAIN

CLAIMANT

-v-

Commissioner of Police

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD Thursday, 17 January 2008, Wednesday, 19 March 2008, Thursday, 27 March 2008

DELIVERED Thursday, 27 March 2008

CLAIM NO. M 81 OF 2007

CITATION NO. 2008 WAIRC 00285

CatchWords Western Australia Police Industrial Agreement 2006 - Clauses 27 and 33(11); Travel Allowance - whether payable for travel required to treat non-work related injury; “on official business”.

Legislation Industrial Relations Act 1979-Sections 81A,81CA,83,83A,83F

 Western Australia Police Industrial Agreement 2006 – Clauses 27 and 33(11).

Cases Cited Robe River Iron Associates v Amalgamated Metal Workers’ and Shipwrights Union of Western Australia and Others (1987) 67 WAIG 1097

 The Australian Timber Workers Union v W Angliss and Company Pty Ltd (1924) 19 CAR 172

 Norwest Beef Industries Ltd and Another v West Australian Branch, Australian Meat Industry Employees Union, Industrial Union of Workers, Perth (1984) 64 WAIG 2124

 Green v Millenium Inorganic Chemicals (2003) 83 WAIG 2836

 City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006 FCA 813

 Short v Hercus Pty Ltd (1993) 40 FCR 511

 Ansett Transport Industries (Operations) Pty Ltd and Others v Australian Federation of Air Pilots and Others [1991] 1 VR 637

 The Australian Boot Trade Employees Federation and Another v Commonwealth of Australia and Others (1953-1954) 90 CLR 24

 Re Muller 2 Qd.R. 608

Cases referred to in

Judgment: Robe River Iron Associates v Amalgamated Metal Workers’ and Shipwrights Union of Western Australia and Others (1987) 67 WAIG 1097

 Norwest Beef Industries Ltd and Another v West Australian Branch, Australian Meat Industry Employees Union, Industrial Union of Workers, Perth (1984) 64 WAIG 2124

 City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) FCA 813

 Ansett Transport Industries (Operations) Pty Ltd and Others v Australian Federation of Air Pilots and Others [1991] 1 VR 637

 The Australian Boot Trade Employees Federation and Another v Commonwealth of Australia and Others (1953-1954) 90 CLR 24

Result The claim fails

Representation 

Applicant Mr P Hunt of the Western Australian Police Union of Workers appeared for the Claimant

Respondent Ms R Hartley (of Counsel) of the State Solicitor’s Office appeared for the Respondent

REASONS FOR DECISION

Facts

1          On 11 December 2006 the Claimant, a member of the Western Australia police force, then stationed at Esperance, sustained an injury to his ankle.  His injury was not work related.  On the joint assessment of his Medical General Practitioner and Physiotherapist he was referred as a matter of priority to see an Orthopaedic Surgeon in Perth.  The Claimant travelled to Perth on 17 December 2006 to consult with the Orthopaedic Surgeon.  On 22 December 2006, following his second consultation with the Orthopaedic Surgeon, he returned to Esperance.  Whilst in Perth he stayed with family.

2         In early January 2007 the Claimant submitted his claim for Travelling Allowance in the sum of $416.85.  The Respondent has denied the claim.  The Claimant asserts that he is entitled to the amount claimed pursuant to the provisions of subclause 33(11) of the Western Australia Police Industrial Agreement 2006 (the Agreement).  He contends that by failing to pay him his entitlement the Respondent has breached the Agreement.  He accordingly seeks the imposition of a penalty for the breach and to recover $416.85 plus interest.

The Agreement

3         It is not in dispute that the Agreement governed the terms and conditions of the Claimant’s employment at the material time.

4         Relevantly clause 33 of the Agreement which is headed ENTITLEMENT TO LEAVE AND ALLOWANCES THROUGH ILLNESS OR INJURY provides in subclause (11):

An employee who is required to travel to Perth or a location other than his or her locality for medical treatment is entitled to travel allowances in accordance with Clause 27. – Travelling Allowances.

5         Clause 27 in its opening provides:

An employee who travels on official business shall be reimbursed reasonable expenses on the following basis:

The Claimant’s Case

6          The Claimant contends that subclause 33(11) does not distinguish between work and non-work related treatment.  Accordingly its application is not affected by clause 27.  Clause 27 does not determine the Claimant’s eligibility to claim travel allowance in this instance but rather establishes the quantum of the claim already enabled by subclause 33(11).  To hold otherwise would render subclause 33(11) obsolete.

7          In the alternative, if clause 27 is found to affect the determination of eligibility, then the nature of the travel and the circumstances giving rise to such travel undertaken by the Claimant permits the entitlement because his travel was officially sanctioned under clause 33 of the Agreement.

The Respondent’s Case

8          The Respondent contends that because subclause 33(11) is expressed as being “in accordance with clause 27” the logical conclusion that flows is that the entitlement to travel allowance is contingent on expenses being incurred whilst travelling on official business.  The Claimant’s travel to Perth to seek treatment for an injury which was not work related cannot be considered travelling on official business.

The Issues

9         There are two pivotal issues to be determined in this matter.  They are:

1. Does clause 27 have the effect of limiting claims made under subclause 33(11) to those that relate to travel on official business?
2. If so, did the Claimant travel on official business?

Determination

10      Does clause 27 have the effect of limiting claims made under subclause 33(11) to those that relate to travel on official business?

11      The relevant clauses of the Agreement are to be interpreted in the same way as one would interpret a statute or an award (see Robe River Iron Associates v Amalgamated Metal Workers’ and Shipwrights Union of Western Australia and Others (1987) 67 WAIG 1097).  When interpreting the Agreement it will be necessary to consider the ordinary meaning of the specified words in the context of the Agreement (see Norwest Beef Industries Ltd and Another v West Australian Branch, Australian Meat Industry Employees Union, Industrial Union of Workers, Perth (1984) 64 WAIG 2124).  Reference to extrinsic material will not be permissible in the proper construction of subclause 33(11) given that it is not ambiguous.  Regard, in construing subclause 33(11), must be had for the context and purpose of the provision.  Such may appear from the text of the instrument taken as a whole; its arrangement and the place of the provision under construction within it (see City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) FCA 813 at paragraph 53).

12      The Claimant suggests that the ordinary meaning of the words in subclause 33(11) contain no limiting provision, particularly when read in the context of the entire clause and the Agreement itself.  He says that subclause 33(11) forms part of the clause dealing with entitlement to leave and allowances in circumstances where the employee is incapacitated by reason of illness or injury irrespective of whether the same is work related or not.

13      It is obvious that clause 33 is about entitlements to leave and allowances payable as result of illness or injury.  The clause deals with both non-work related sick leave and leave resulting from work related illness or injury.  The clause addresses both scenarios without distinction.  This unique clause inevitably results from the fact that police officers are not entitled to workers compensation.  Therefore the clause rolls into one leave entitlements on account of illness or injury irrespective of how the incapacity arose.  Nevertheless it is important to note that the clause does contain limitations and conditions.  For example, if the employee becomes incapacitated through his or her own fault or misconduct, then paid leave will not be available.  Furthermore, the employer has discretion to consider whether or not paid leave will be granted in certain circumstances.

14      The Claimant points out that subclause 33(11) is not inconsistent with other provisions within the Agreement which make provision for the payment of non-work related expenses.  One such clause is clause 36 which facilitates the payment of non-work related medical and pharmaceutical expenses.  The Claimant argues that subclause 33(11) is consistent with clause 36 in enabling the payment of travel allowance to an employee required to travel to obtain medical treatment irrespective of the situation in which the injury or illness was sustained.  He contends that the clause is for the benefit of employees working in places where appropriate medical treatment is not available.

15      In construing subclause 33(11) it is apparent that the clause is not as open ended as the Claimant suggests.  It has certain limitations.  For example an employee who becomes incapacitated through his or her own fault or misconduct is not entitled to travel allowance for travel undertaken for the purpose of receiving medical treatment.  Such is implicit if not explicit.  Consistent with that the clause expresses limitation in subclause (11) by the use of the words “in accordance with clause 27. - Travelling Allowances”.  Clause 27 sets out the basis upon which employees are to be paid travel allowance.  It does not simply prescribe the rate payable but expresses the contingent factors required to make such payable.  Unlike clause 36, the very words used in subclause 33(11) create contingencies and limitations.

16      The words “in accordance with” mean “in agreement, or harmony with, in conformity to” (Oxford English Dictionary).  The phrase has been judicially considered in Ansett Transport Industries (Operations) Pty Ltd and Others v Australian Federation of Air Pilots and Others [1991] 1 VR 637 and in The Australian Boot Trade Employees Federation and Another v Commonwealth of Australia and Others (1953-1954) 90 CLR 24 and was found to mean “in harmony with, in conformity with, in agreement with”.

17      The logical conclusion that follows is that “in accordance with” as contained in subclause 33(11) of the Agreement requires conformity with clause 27 in that travel allowance will be paid only for expenses incurred while travelling on “official business”.  To hold otherwise would be to ignore the precondition clearly expressed in clause 27 with which subclause 33(11) must conform.

18      In my view clause 27 has the effect of limiting claims made under subclause 33(11) to those that relate to travel on official business.

19      Did the Claimant travel on official business?

20      The Claimant contends that his travel for medical treatment was enabled by subclause 33(11) and therefore such travel was sanctioned and/or authorised.  With respect, I disagree.  Subclause 33(11) does no more than to provide an entitlement to an employee who travels for the purpose of obtaining medical treatment whilst on official business.  The subclause does not have the effect of sanctioning or authorising travel undertaken for medical treatment.

21      “Official” has many meanings but in this context means “relating to the discharge of duties; connected with the tenure of office” (Oxford English Dictionary).  “Business” means “a task appointed or undertaken” or “that which one is engaged or with which one is engaged at the time” (Oxford English Dictionary).  The word “official” connotes a connection with duty and the office whilst “business” relates to the carrying out an undertaking connected with the office and duties that attach to the office.

22       The Claimants travel was not on official business.  The reason for his travel was wholly unconnected with the discharge of his duties or the holding of his office.

Conclusion

23       Subclause 33(11) and clause 27 of the Agreement in combination make it clear that travel allowances are payable to those employees who travel for the purpose of receiving treatment for work related injury or illness.  If subclause 33(11) did not exist there might be some controversy as to whether clause 27 alone would facilitate the payment of travel allowance for travel undertaken with respect to work related illness or injury.  Subclause 33(11) together with clause 27 is instructive in that regard.  It is not therefore correct to say, as the Claimant suggests, that subclause 33(11) is rendered obsolete by the construction reached.  The two provisions complement each other.

Result

24       The claim fails.

G Cicchini

Industrial Magistrate