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[2025] FWCFB 164
General information, not legal advice.
Fair Work Commission (Full Bench)
2025-08-01
Original judgment source is linked above.
s.604 - Appeal of decision
Appeals against decision [2024] FWC 2417 of Deputy President O'Neill on 6 September 2024 in Melbourne.
[1] This decision concerns appeals by the Community and Public Sector Union (CPSU) and the Victorian Fisheries Authority (VFA) against a decision[1] of Deputy President O'Neill, issued on 6 September 2024. In that decision, the Deputy President determined a dispute arising under the Victorian Public Sector Enterprise Agreement 2020 (Agreement) relating to the entitlement of CPSU members Mr Daniel Steel and Mr Benjamin Amey, who are employed by the VFA as Fisheries Officers, to be reimbursed by the VFA for expenses in connection with moving residence as a result of their relocation to vacant positions via a process referred to as 'internal transfer at level'.
[2] In summary, clauses 19.7(a) and (b) of the Agreement provide for reimbursement of 'reasonable expenses associated with the relocation' including expenses incurred by an employee as a result of selling and purchasing a 'comparable residence', in circumstances where the employee relocates to a new permanent work location, the relocation arises from promotion or transfer as a result of an 'advertised vacancy' or redeployment, and the employer considers that it is reasonable and necessary for the employee to move residence. The dispute arose when the VFA applied a cap in the VFA Relocation Expense Reimbursement Policy (Relocation Policy) resulting in Mr Steel and Mr Amey being reimbursed for amounts less than they had claimed as relocation expenses.
[3] The background facts as found by the Deputy President were not in dispute in the appeal and relevantly, were as follows. In February 2022, the VFA sent a State-wide email addressed to Fisheries Officers advising that 'a transfer at level expression of interest process for Fisheries Officer vacancies' (EoI process) throughout Victoria would be commenced, open to all grade 3 and 4 Fisheries Officers. The email advised staff to read the VFA's Internal Transfer at Level Guideline (Transfer Guideline) which was attached to the email and explained the process and criteria involved, in greater detail. The Transfer Guideline refers to related documents, namely the VFA Recruitment Policy (Recruitment Policy) and the Relocation Policy. These policies apply only to the VFA and its employees.
[4] Mr Steel and Mr Amey each submitted an EoI and were successful in obtaining positions. Both employees sold their residences, relocated their families, purchased residences in their new work locations and made claims to be reimbursed for costs associated with relocation. Mr Steel relocated to take up a position in Wodonga and sought reimbursement for costs totalling $70,382.85 including real estate fees, conveyancing, removalists, and stamp duty in the amount of $48,470.00, on the purchase of his new residence. By virtue of the cap, Mr Steel was reimbursed $20,441.52, leaving a balance of $49,941.33.
[5] Mr Amey applied for and obtained a position in Cowes. Shortly after being advised of his successful application, and prior to relocating, Mr Amey raised concerns about the cap which he considered was inconsistent with clause 19.7 of the Agreement. On 18 May 2022, the CEO informed him that any relocation costs above the cap in the Relocation Policy would not be approved, and that the CEO was prepared to approve his relocation request on the basis that any expenses would be within the limits of the Relocation Policy. Mr Amey proceeded to accept the position and commenced at Cowes in December 2022. After relocating to Cowes, Mr Amey submitted a claim for reimbursement of costs totalling $80,206.43 for real estate agents, storage, conveyancing on the sale of his residence and the purchase of a new residence, building inspection, campaign fees, commission and stamp duty costs in the amount of $49,970.00 on the purchase of his new residence. By virtue of the cap, Mr Amey was reimbursed $26,177.28, leaving a balance of $54,029.15.
[6] Mr Steel and Mr Amey, via the CPSU, raised disputes asserting an entitlement to be paid the full amounts they had claimed and that the VFA was not permitted by the Agreement to cap those amounts. The VFA contended that the internal transfer at level process did not involve 'advertised vacancies' within the meaning in clause 19.7 of the Agreement and that the payments made to Mr Steel and Mr Amey were made because the VFA 'saw fit' to do so, rather than because the VFA was required by clause 19.7 to make the payments. The dispute was not resolved by conciliation. The Agreement empowers the Commission to arbitrate disputes. The parties agreed that the Deputy President would determine the dispute by answering the following questions:
Do Ben Amey's relocation from Mornington to Cowes Fisheries Station and Dan Steel's relocation from Snobs Creek to Wodonga Fisheries Station amount to relocations arising from 'promotion or transfer as a result of an advertised vacancy' within the meaning of 19.7(a) of the Victorian Public Service Agreement 2020?
If 'yes', are Ben Amey's and Dan Steel's relocation expenses 'reasonable expenses' as referred to in clause 19.7(a) and (b) of the Victorian Public Service Agreement 2020 including in circumstances where:
these expenses exceed the maximum allowable amounts specified in the Victorian Fisheries Authority Relocation Expense Reimbursement Policy; and
prior approval from the VFA CEO was not obtained before incurring those expenses.
[7] The Deputy President answered question A in the affirmative, finding, contrary to the submission of the VFA, that the relocations of the two employees arose from 'transfer as a result of an advertised vacancy' within the meaning of clause 19.7(a) of the Agreement. In relation to question B, the Deputy President found that the 'nature' of the expenses claimed by both employees was appropriately described as 'reasonable', and that it was not open to the VFA to define that term by imposing a cap by way of the Relocation Policy, in relation to amounts to be reimbursed. However, the Deputy President answered question B in the affirmative for Mr Steel and in the negative for Mr Amey. As a result, Mr Steel was found to be entitled to reimbursement of the amount by which his claim exceeded the cap applied by the VFA, and Mr Amey was found not to be so entitled. The basis upon which the Deputy President distinguished Mr Amey's claim was that he had been informed of the Relocation Policy and that his expenses would be subject to a cap, prior to deciding to accept the transfer, and took no step to bring a dispute about the legitimacy of the CEO's position prior to relocating. The Deputy President found that in those circumstances, Mr Amey's expenses beyond the cap in the Relocation Policy were not reasonable.
[8] The CPSU appeals against the determination with respect to Mr Amey and contends that the Deputy President erred by not answering the second question in the affirmative with respect to Mr Amey. The CPSU also contends that the grounds upon which the Deputy President decided that Mr Amey was not entitled to reimbursement were not raised in the proceedings nor advanced by the Respondent, and that Mr Amey was denied procedural fairness by not being put on notice that the finding was in contemplation.
[9] The VFA appeals against the determination in relation to question A and contends that the relocation of Mr Steel and Mr Amey did not arise from promotion or transfer 'as a result of an advertised vacancy, or redeployment', within the meaning in clause 19.7(a) of the Agreement. This was said to be a jurisdictional fact in relation to which the Deputy President erred by making an incorrect finding. The VFA contends that Mr Steel and Mr Amey were not entitled to any reimbursement of expenses under clause 19.7 of the Agreement, and that the payments they received were made on an ex-gratia basis. The VFA also contends that the Deputy President erred in reaching the wrong conclusion on question B in respect of Mr Steel's relocation expenses where such expenses were not reasonable in the circumstances.
[10] Both parties sought, and were granted, permission to be legally represented in the appeal on the basis that the Full Bench was satisfied it would enable the matter to be dealt with more efficiently, taking into account its complexity.
[11] Section 604 of the Act provides, in effect, that an aggrieved person may appeal a relevant decision with permission of the Commission. This operates subject to the terms of an instrument otherwise providing the basis for the Commission to determine a matter by arbitration under s 739 of the Act. The dispute resolution provision in the Agreement relevantly provides that a determination of a single member of the FWC made pursuant to the clause may, with the permission of a Full Bench of the FWC, be appealed.[2] It is not in dispute, and we find, that permission to appeal is required to be obtained by an aggrieved party and that the provisions of s 604(2) of the FW Act apply to the appeal.
[12] By virtue of s 604(2), without limiting when the Commission may grant permission, the Commission must grant permission if the Commission is satisfied that it is in the public interest to do so. It is well established that the public interest might be attracted including where a matter raises issues of importance and general application, there is a diversity of decisions at first instance requiring guidance from a Full Bench, or where the decision manifests an injustice or the result is counter intuitive.[3]
[13] We accept that the appeal raises questions of general application and importance concerning entitlements under the Agreement in relation to relocation expenses with the potential to affect employees in the Victorian public service beyond those employed by the VFA, and that permission to appeal should be granted.
Approach to appeals concerning the construction of enterprise agreements
[14] The 'correctness standard' applies to this appeal. The criterion for the determination of the dispute demands a unique outcome.[4] The relevant issue in the appeal is whether the Deputy President's answer to the questions of interpretation raised by the dispute before her is correct. If we consider that her answer was not correct, our duty is to substitute what we consider to be the correct answer for the answer given in the decision. The questions for determination required the Deputy President to construe the disputed provisions of Agreement before deciding how, if at all, they applied Mr Steel and Mr Amey, based on the relevant facts and circumstances. The principles that apply to the interpretation of enterprise agreements are well known and need not be restated.
[15] Clause 19 of the Agreement relevantly provides:
19.1 The Employer must determine a usual place or places of work for an Employee.
19.2 The Employer may change an Employee's usual place or places of work, on either a temporary or permanent basis, in accordance with this clause.
19.7 Permanent relocation of the usual place of work requiring residential relocation
If the Employer considers that it is reasonable and necessary for an Employee to move residence as a result of relocation from one work location to another, and the relocation arises from promotion or transfer as a result of an advertised vacancy, or redeployment, the Employee will be entitled to:
(i) up to three days' paid leave associated with the relocation; and
(ii) reimbursement of reasonable expenses associated with the relocation as per clause 19.7(b).
(b) Reasonable relocation expenses
Relocation expenses include reasonable expenses directly incurred by the Employee and their family as a result of:
(i) the journey to the new location, including meals and accommodation;
(ii) removal, storage and insurance; and
(iii) selling and purchasing of a comparable residence.'
[16] The CPSU's grounds of appeal are set out in the Notice of Appeal as follows:
'1. The Deputy President erred by not answering 'Yes' to question two with respect to Mr Amey: 'If "yes", are Ben Amey's and Dan Steel's relocation expenses "reasonable expenses" as referred to in clause 19.7(a) and (b) of the Victorian Public Service Agreement 2020 including in circumstances where: iii. these expenses exceed the maximum allowable amounts specified in the Victorian Fisheries Authority Relocation Expense Reimbursement; and iv. prior approval from the VFA CEO was not obtained before incurring those expense'.
2. The Deputy President erred in her interpretation and application of 'reasonable expenses' under clause 19.7(a) and (b) concerning Mr. Amey. In paragraph [35] of her decision, she erroneously concluded that the circumstances described rendered Mr. Amey's expenses, which exceeded the cap in the RER Policy, as not constituting reasonable relocation expenses. This conclusion was reached despite her finding in paragraph [32] that the nature of the expenses claimed by Mr. Amey was appropriately described as reasonable within the ordinary meaning of the word.
3. In assessing whether costs claimed by Mr. Amey were 'reasonable expenses' under clause 19.7(a) and (b), the Deputy President erred by taking into account the circumstances described in paragraph [35] of her decision.
4. The Deputy President denied the appellant procedural fairness. The Deputy President's findings and arguments described in paragraph [35] were not advanced by the Respondent or raised in the proceedings. The Deputy President did not bring these critical matters to the attention of the parties, denying the affected party the opportunity to respond.'
[17] The VFA's grounds of appeal are set out in the Notice of Appeal as follows:
'1. The DP erred in making a finding of a jurisdictional fact, namely that there had been a 'promotion or transfer as a result of an advertised vacancy, or redeployment, within the meaning of 19.7(a) of the Victorian Public Service Agreement 2020'.
2. The DP erred in reaching the wrong conclusion on question 2 in respect of Mr Steel's relocation expenses where such expenses were not reasonable in all the circumstances.
The relocation expenses were not reasonable where they exceeded an expenses cap contained in the Relocation Reimbursement Expense policy (RER Policy) where such RER Policy was reasonable in its terms and made available and known to all VFA employees.
"Employees and appointees seeking reimbursement of travel expenses, and an allowance or payment relating to relocation expenses must have prior approval through negotiation within the appointment process from the CEO or a delegate of the CEO."
"The VFA considers that a limit to relocation expenses is required to ensure that claims are reasonable in accordance with the VPS Agreement and Public Administration Act 2004.
Expenses incurred up to the individual and total amounts set out in the table below may be reimbursed to an eligible employee who is required to relocate his or her place of residence, upon the production of relevant receipts. Expenses incurred beyond this limit must have prior approval from the CEO."
3. The error was jurisdictional in nature because the answer to the second question involved the application of the 'correctness standard': did the Commission arrive at the one unique and correct answer? See Rail Commissioner v Rogers; AWU v Orica; Ambulance Victoria v Fyfe. (citations omitted)'
[18] We agree with the VFA that question A is a threshold question. In our opinion, there is a short answer to the threshold question that determines both appeals. Clause 19.7 of the Agreement entitles employees to reimbursement of reasonable expenses, if the employer considers that it is reasonable and necessary for an employee to move residence, as a result of relocation from one work location to another, and the relocation arises from promotion or transfer as a result of an advertised vacancy or redeployment. In the case of Mr Steel and Mr Amey, there was no advertised vacancy within the meaning in clause 19.7. Mr Steel and Mr Amey were not promoted or redeployed. As a result, clause 19.7 of the Agreement was not engaged and Mr Steel and Mr Amey were not entitled to the benefits in that clause. Our reasons for this conclusion are as follows.
[19] Consistent with the authorities discussed above, the starting point for construing an enterprise agreement is the ordinary meaning of the disputed term, read as a whole and in context. The term 'advertised' is not technical or legal. To assist in determining the ordinary meaning or common use of a term, it is appropriate to refer to a dictionary[5] - the approach the parties and the Deputy President took at first instance.
[20] The ordinary meaning of the expression 'advertised vacancy' is a vacancy that is made public. This is consistent with dictionary definitions and ordinary industrial and everyday language. A call for expressions of interest for a vacancy from within an organisation does not involve the vacancy being advertised. In the present case, the call for expressions of interest was not made public. It was sent to a group of employees within the VFA - Fisheries Officers and Senior Fisheries Officers classified at Levels 3 and 4. While the drafters of a text can give the expression 'advertised vacancy' any meaning they wish, there is nothing in the text, context, or objectively manifested purpose of the Agreement that is indicative of any meaning other than the ordinary one.
[21] There is nothing in the context of the Agreement read as a whole that is indicative of any meaning other than the ordinary one. The term 'advertise' is used only in one other clause of the Agreement, clause 52.4(d), in a different context which simply concerns 'advertising' the name of a contact person to employees within a 'workplace', indicating that the term has a meaning other than its ordinary meaning, in the context of that clause. The fact that clause 19 provides the only source of power for the employer to change an employee's usual place of work, is not determinative of whether clause 19.7 applies to the transfers of Mr Steel and Mr Amey. The provisions in clause 19.2 - 19.6 give an employer discretion to require an employee to change his or her usual place or places of work and have no application in the circumstances of Mr Steel and Mr Amey agreeing to relocate from one work location to another. The VFA did not require a source of power to change the work locations of Mr Steel and Mr Amey, with their agreement, by transferring them to vacant positions at the level at which they were working.
[22] The CPSU put no evidence to the Deputy President or the Full Bench, of common understanding in the Victorian Public Service, to indicate that an alternative construction should be preferred. At the hearing of the appeal, it was indicated that no such evidence is available.[6] The construction of the clause that we favour is not inconsistent with the industrial context in which the Agreement operates, including the focus in the Agreement on the promotion of workforce flexibility as provided in clause 15.1, to the benefit of the VFA and employees and the focus on merit as the basis for selection and promotion.
[23] We do not consider that the employer's policy documents referred to by the parties at first instance and in the appeal, inform the meaning of clause 19.7 of the Agreement. There is no evidence of any common intention that the policy documents should have this effect, either with respect to clause 19.7 or generally. The policy documents apply only to the VFA and there is no basis upon which they could reflect a common understanding of the terms of an agreement that applies across the Victorian Public Service as a whole. We consider that clause 19.7 of the Agreement simply means what it says. There is no cause to have recourse to policy documents or other extrinsic materials.
[24] In any event, the policy documents do not assist the argument advanced by the CPSU. While the policies indicate that advertising may be internal or external, the policies do not establish that an EoI process of the kind Mr Steel and Mr Amey participated in is an internal advertisement. It is self-evident that the EoI process is not an external advertisement. The Recruitment Policy at clause 5.1 paragraph 9, sets out the minimum requirements for advertising a 'vacancy'. Those requirements apply to two categories of vacancy: fixed term roles up to six months (required to be advertised 'internally' through a 'local expression of interest or the Jobs and Skills Exchange (JSE) and 'externally' by exemption only as approved by the CEO); and ongoing, fixed term or casual roles over six months (required to be advertised via the JSE for a period of 10 days and 'externally' by exemption only as approved by the CEO). Clause 5.2 deals with recruitment generally and encompasses external recruitment. There are no documents explaining the JSE or its purpose. However, we accept the explanation provided by counsel for the VFA in the appeal hearing, which was not disputed by the CPSU, that the JSE is a mechanism for advertising jobs in the Victorian Public Service internally and is accessible by all employees in the Victorian Public Service.[7] It is clear from the Recruitment Policy that the JSE and an external advertisement are distinct processes with the JSE being a mechanism for internally advertising vacancies and that external advertisement involves public advertising.
[25] Clause 5.3 of the Recruitment Policy sets out the 'local expression of interest' process emphasising that it is used only for all roles under six months duration, to ensure transparency and fairness within a Group/Division where the vacancy exists. There is no other reference to conducting an EoI process. Clause 5.4 which deals with 'Internal Transfer at level for Fisheries Officers' makes no reference to the manner in which information about vacancies filled via this process is to be disseminated to interested employees. The process in clause 5.4 is distinct from the process for recruitment in clause 5.2 and the EoI process in clause 5.4 for filling vacancies of less than six months. That the 'Internal Transfer at level process' is distinct from other processes for filling vacancies is further emphasised by the Transfer Policy, which deals only with that process, and makes no reference to an EoI being conducted. The fact that an EoI process is used to enable a limited group of employees within the VFA to express interest in an internal transfer at level to other vacant positions at the same level as that of the position they currently occupy, does not result in the vacant positions being 'advertised' vacancies within the meaning in clause 19.7.
[26] The vacant roles Mr Steel and Mr Amey expressed interest in filling, were not fixed term vacancies for a period up to six months. The relevant vacancies are ongoing roles of over six months, and if they were 'advertised' as required by the Recruitment Policy, it would have been necessary for the vacancies to be advertised via the JSE for 10 days and via external advertisement unless the VFA CEO approved an exemption from external advertisement.
[27] The CPSU submitted that the VFA's interpretation of clause 19.7 was a narrow one. We do not agree. It is the CPSU's interpretation that is unduly broad. The CPSU submitted that, had the VFA's meaning been intended, the clause could have stated that vacancies must be advertised publicly. In our view, this would have been tautological. The CPSU contended that it made no sense that the Agreement should confer significant benefits on externally recruited persons while offering none to those internally recruited. But this argument makes no sense on two counts. Plainly, clause 19.7 of the Agreement does not apply to non-employees applying for jobs covered by the Agreement. The Agreement does apply to internal candidates, but only if they relocate from one work location to another arise from promotion, transfer as a result of an advertised vacancy or redeployment. This is stated in clause 6 of the Relocation Policy.
[28] The CPSU also said that the VFA's construction should not be accepted because it would allow the employer to structure recruitment processes to limit the availability of the relocation benefits. This is correct. But it does not assist the Union. There is nothing unusual about an employer having a discretion in respect of vacancies that should be advertised. Contrary to the CPSU's submission, this does not amount to a circumvention of the employer's responsibilities under the Agreement.
[29] There is an obvious reason why such generous benefits as those in clause 19.7 would be confined to employees who have been transferred as a result of an advertised vacancy. A public process can first test whether there are suitable local candidates who can be hired for the vacancy before the State of Victoria is required to expend significant public funds relocating an internal candidate. The ordinary meaning of the expression 'advertised vacancy' is therefore also an entirely reasonable one in the context of the Agreement.
[30] The resolution of this point of construction has the consequence that the Deputy President's answer to question A was, in our respectful opinion, not correct, and that the VFA's appeal must be upheld. It also means that grounds 1 - 3 of the CPSU's appeal must be dismissed, because neither Mr Steel nor Mr Amey were entitled to the benefits of clause 19.7 of the Agreement, and it is not relevant to inquire as to whether their expenses were reasonable. The terms 'reasonable' and 'comparable' are words of limitation and when the clause applies it may be necessary to consider the subject matter and quantum of expenses claimed including whether the expenditure on stamp duty is for the purchase of a comparable residence. But it is not necessary to consider this in the present case.
[24] We conclude that the correct answer to question A is: 'No' and that it was not necessary for the Deputy President to answer question B.
Mr Nicholas Harrington of counsel for the Victorian Fisheries Authority instructed by Mr David Hartnett.
Mr Andreas Ansorge for the Community and Public Sector Union.
[3] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266.
[4] See Minister for Immigration v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at 563 per Gageler J.
[5] R v Peters (1886) 16 QBD 636 at 641.
Printed by authority of the Commonwealth Government Printer
Community and Public Sector Union (SPSF Group)
The Victorian Fisheries Authority [2025] FWCFB 164
(2010) 197 IR 266
(2018) 264 CLR 541