WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

PARTIES GEOFFREY S. HOLT

CLAIMANT

-v-

Director General, Department of Education and Training

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD WEDNESDAY, 19 August 2009

DELIVERED Thursday, 10 September 2009

FILE NO. M 18 OF 2009

CITATION NO. 2009 WAIRC 00664

CatchWords School Education Act Employees’ (Teachers and Administrators) General Agreement 2006 ( the “Agreement”); claim for property allowance pursuant to cl 83 - of the Property Allowance Agreement; whether Claimant was transferred or promoted from one locality to another giving rise to an entitlement to a property allowance; construction of the terms “transferred” and “promoted”.

Legislation: School Education Act Employees’ (Teachers and Administrators) General Agreement 2006, cl 83

Teachers (Public Sector Primary and Secondary Education) Award 1993, cl 55

Industrial Relations Act 1979, s 83

School Education Act 1999, s 235(1)

Public Sector Management Act 1994

Cases Cited: Australian Electronics, Electrical, Foundry and Engineering Union (WA Branch) v Minister for Health (1991) 71 WAIG 2253

Norwest Beef Industries Ltd v Australian Meat Industries Employees Union (WA) (1984) 64 WAIG 2124

Excell v Harris and others 51 ALR 137

Cases Referred to

in Judgement: Australian Electronics, Electrical, Foundry and Engineering Union (WA Branch) v Minister for Health (1991) 71 WAIG 2253

Norwest Beef Industries Ltd v Australian Meat Industries Employees Union (WA) (1984) 64 WAIG 2124

Excell v Harris and others 51 ALR 137

Project Blue Sky Inc and others v Australian Broadcasting Authority (1998) 194 CLR 355

Result: Claim Determined

Representation: 

Claimant Mr M. Amati of The State School Teachers’ Union of W.A. (Incorporated) appeared as agent for the Claimant.

Respondent Mr R. Andretich with Ms T.S. Cole instructed by the State Solicitor for Western Australia appeared for the Respondent.

REASONS FOR DECISION

The Claim

1    The Claimant asserts that on 29 January 2007 he was transferred and/or promoted from a position with the Respondent at Balga Senior High School, within the Metropolitan School District, to a position at Busselton Senior High School, within the Warren Blackwood Education District.  As a consequence of the transfer/ promotion, he in December 2007 sold his place of residence in Perth and purchased another in Quindalup, near Busselton where he and his family continue to reside.  He says that cl 83.2 of the School Education Act Employees (Teachers and Administrators) General Agreement 2006 (“the Agreement”) or alternatively cl 20(1) [sic cl 55] of the Teachers (Public Sector Primary and Secondary Education) Award 1993 (“the Award”) entitles him to recover a property allowance related to “prescribed expenses” incurred with the respect to that sale and purchase.  He contends that he is not subject to the exceptions within the relevant clauses which would otherwise disentitle him and accordingly claims a property allowance for prescribed expenses incurred.

2    He contends that in failing to pay him the property allowance, the Respondent has contravened the Agreement and the Award.  He seeks that the Respondent be ordered to pay him $35,593.07 plus interest thereon and further that the Respondent be penalised for the contravention.

Response

3    The Respondent submits that in order to be entitled to be paid a property allowance for reimbursement of prescribed expenses the Claimant must have been transferred or promoted from one locality to another.  The Respondent contends that the Claimant has neither been promoted nor transferred and therefore is not entitled to the payment of a property allowance.  The Respondent says that the meaning of the terms “promoted” and “transferred” can only be construed as referring to a permanent move.  Given that the Claimant’s move was temporary he is not entitled to the allowance claimed.

Issue

4    Was the Claimant’s move from Perth to Busselton as a consequence of a promotion or transfer?

Facts

5    The facts in this matter are in the main uncontroversial and are as follows.

6    The Claimant is a teacher employed by the Respondent.  On 14 February 2002 he received notification that he had successfully completed a period of probation and that he had been appointed to the permanent staff with effect from 31 January 2002.  On 29 December 2004 the Respondent permanently appointed the Claimant to the position of Level 3 Classroom Teacher at Swan View Senior High School, commencing on 1 January 2005.

7    On 15 December 2005 the Claimant was offered a Level 3 Deputy Principal’s position of Swan Noongar Sports Education Program (SNSEP) at Balga Senior High School.  That position involved the running of a program for indigenous students.  The position offered was a short term position filled by a “tap on the shoulder.”  It was anticipated that the substantive position would be advertised state-wide by the end of term one in 2006. As it turned out, the position was never advertised.  By letter dated 14 February 2006, the Respondent appointed the Claimant to a fixed term position on higher duties at Balga Senior High School for the period 30 January 2006 to 13 December 2006.  The Claimant was of the view at that time that he had retained his substantive position at Swan View Senior High School and would be able to return to that school upon completion of his fixed term at Balga Senior High School.

8    In September 2006, the Claimant made a workers compensation claim and went on leave.  At about that time, the Claimant, much to his surprise, ascertained that he had been given an Employer Initiated Placement (“EIP”) status because he was considered to be a permanent teacher who did not hold a substantive position at any school.  As a consequence he was able to apply for local merit selection positions in the 2007 transfer run and because of his EIP status would be given priority.  Notwithstanding that, the Respondent was informed by letter dated 24 October 2006 that he had been unsuccessful in gaining a permanent teaching placement for 2007.  Subsequently on 30 November 2006 he was advised that he had been merit selected to fill a fixed term position as Program Coordinator: Middle School – Curriculum and Care (Level 3 Step 3) at Busselton Senior High School.  The term of the appointment was from 29 January 2007 until 16 December 2008.  On 11 December 2007 the Respondent wrote to the Claimant confirming his two year fixed term appointment to Busselton Senior High School.  In that letter the Respondent stated under the heading “Comments relevant to appointment” – “…merit selected for a two year period to promotional position program coordinator Middle School – Curriculum and Care.”

9    In January 2007 the Claimant and his family moved from their family home in Sorrento to a rental property in Quindalup.  By the end of 2007 the Claimant and his family decided to remain in the Busselton area.  By that stage his family was well settled and had come to like the area.  As a result in about December 2007 the Claimant sold his residence in Perth and purchased another in Quindalup.  At that time he made his application for a property allowance aimed at defraying the costs of selling the family home and purchasing another in the area where he now works.  He submitted his claim for the property allowance on 13 December 2007.

10 On 16 April 2008 Mr Bruce Hicks on behalf of the Respondent wrote to the Claimant rejecting his claim for the property allowance.  In his letter Mr Hicks said:

“The advice received from Labour Relations was that as were [sic] relocated on an end dated promotional appointment your employment is considered a temporary appointment and as a result your do not qualify for the payment of a property allowance.”

                                                                                                                           (Exhibit 6)

11 The Claimant thereafter sought the assistance of his union with respect to his Claim.  It suffices to say that subsequent discussions between the Claimant’s union and the Respondent have failed to resolve the issue.

12 In the intervening period, on 28 August 2008, the Claimant sent an email to the Respondent with a view to obtaining a permanent position in the Busselton area.  He said inter alia:

“I attach my resume which I would like you to forward on to Busselton SHS in a bid to place me substantively in the school where I am currently acting as a Level 3 Program Coordinator (Middle School).

In my placement request form I asked to be considered for Busselton, Cape Naturaliste College and Margaret River Senior High School, however, I now wish to only be considered for Busselton SHS.

I had also applied for permanent transfer to Busselton SHS.

Please contact me if there is any problem with my request.” 

                                                                                                                          (Exhibit 8)

13 On 22 October 2008 the Respondent advised the Claimant that he was unsuccessful in gaining a substantive teaching placement for 2009.  On 24 October 2008 the Claimant accepted an appointment to the Busselton Senior High School teacher pool for 2009.  However, on 6 November 2008 the Respondent informed the Claimant that he had been permanently appointed to Busselton Senior High School within its mathematics area.  He accordingly now holds a permanent position at that school as a Level 3 Class Room Teacher.

Determination

14 At the commencement of the hearing the parties asked that I consider and resolve the issue of liability and leave all other matters to be determined later, in the event of the Claimant being successful on liability.

15 The relevant Agreement and Award provisions relating to property allowance are for my purposes identical.  For ease and convenience I will refer solely to the provisions in clause 83 – Property Allowance of the Agreement.  It provides:

“83 PROPERTY ALLOWANCE

83.1 For the purposes of this clause:

 “Prescribed Expenses” shall mean:

 (a) Legal fees in accordance with the Solicitor’s Remuneration Order 1976 mutatis mutandis, duly paid to a solicitor or in lieu thereof fees charged by a settlement agent for professional costs incurred in respect of the sale or purchase, the maximum fee to be claimed shall be as set out under Item (8) of the above order.

 (b) Disbursements duly paid to a solicitor or a settlement agent necessarily incurred in respect of the sale or purchase of the residence.

 (c) Real estate agent’s commission in accordance with that fixed by the Real Estate and Business Agents’ Supervisory Board, acting under Section 61 of the Real Estate and Business Agents’ Act 1978, duly paid to an agent for services rendered in the course of and incidental to the sale of the property, the maximum fee to be claimed shall be fifty per cent as set out under Items (1) or (2) – Sales by Private Treaty or Items (1) or (2) – Sales by Auction of the Maximum Remuneration Notice.

 (d) Stamp Duty.

 (e) Fees paid to the Registrar of Titles or to the officer performing duties of a like nature and for the same purpose in another State of the Commonwealth.

 (f) Expenses relating to the execution or discharge of a first mortgage.

(g) The amount of expenses reasonably incurred by the employee in advertising the residence for sale.

83.2 Subject to the exclusions expressed in this clause, when an employee is transferred or promoted from one locality to another, the employee shall be entitled to be paid a property allowance for reimbursement of prescribed expenses, as defined in Clause 83.1 of this clause incurred:

(a)   in the sale of a residence in the employee’s former locality which, at the date on which the employee received notice of transfer to the new locality:

 (i)  the employee owned and occupied; or

(ii)   the employee was purchasing under a contract of sale and occupying; or

(iii)   the employee was constructing for personal occupation on a permanent basis on completion of construction; and,

(b) in the purchase of a residence or land for the purpose of erecting a residence thereon for personal occupation on a permanent basis in the new locality.

83.3 An employee transferred at his or her own expense in accordance with the provisions of Part 5 of the Public Sector Management Act 1994 and an employee who applies for and is granted a transfer after periods of service of less than two years in a particular locality shall not be entitled to be paid a Property Allowance under this clause unless such payment is expressly approved by the Director General.

83.4 An employee is not entitled to the payment of a property allowance in respect of a sale or purchase within the terms of Clause 83.2 of this clause which is effected more than twelve (12) months after the date on which the employee took up duty in the new locality or after the date on which the employee received notification of transfer back to the former locality, provided that the Employer may in exceptional circumstances grant an extension of time for such period as is deemed reasonable.

83.5 An employee is not entitled to be paid a property allowance under paragraph (b) of Clause 83.2 of this clause unless that employee is entitled to be paid a property allowance under paragraph (a) of Clause 83.2 of this clause unless the employee can show that it is necessary to purchase a residence or land for the purpose of    erecting a residence thereon in the new locality because of the transfer or promotion of the employee.

83.6 For the purposes of this clause, it is immaterial that the relevant transaction is made or entered into:

(a)  in the case of a married employee solely, jointly or as a tenant in common with -

(i)  the employee’s spouse/de facto partner; or

(ii) a dependent relative; or

(iii) the employee’s spouse/de facto partner and a dependent relative.             

(b) in the case of any other employee solely or jointly or as a tenant in common with a dependent relative living with the employee.

83.7 Where an employee sells or purchases a residence jointly or as a tenant in common with another person or other persons, not being a person referred to in the immediately preceding clause, such employee shall be reimbursed only the proportion of the prescribed expenses for which the employee is responsible.

83.8 An application by an employee for a property allowance shall be accompanied by satisfactory evidence of the payment by the employee of the prescribed expenses.

83.9 The Employer shall only be liable for prescribed expenses in Clause 83.1 as applicable to the Perth Median Price for housing.  This amount shall be annually adjusted as of 30 September each year.”

16 It is common ground that none of the exclusions referred to in the aforementioned clause applied to the Claimant at the material time. Therefore the sole issue to be determined is whether the Claimant was transferred or promoted from one locality to another.

17 The terms “transferred” and “promoted” are not defined in the Agreement or in the Award.  The Respondent says that those terms should be construed in the way that they are well understood in the Public Sector.  The Public Sector Standards Commissioner, pursuant to s 21 of the Public Sector Management Act 1994 (“the PSMA”) has made standards which apply to the public sector at large which includes teachers.  In a guide prepared by the Commissioner for applying appropriate standards the terms “appointment /promotion” are described as being “…the appointment of a person from outside or within the public sector to fill a fixed term or permanent vacancy…”.  A “transfer” is described as being “a permanent movement at the same level of classification.”  This involves an employee vacating a job to move to another job with no right of return.  It is not available to fixed term contract employees whose employment terminates on a particular date.

18 The Respondent argues that the proper characterisation of the Claimants’ move to Busselton was that of a temporary deployment.  Temporary deployment (acting) is described in the guide as follows:

“Acting is a temporary movement of an employee to a higher classification level within the same employing authority.  Temporary deployment is a temporary movement of an employee to another position at the same level within the same employing authority”.

19 To support his argument Counsel for the Respondent referred to Excell v Harris and others 51 ALR 137 in which Neaves J. at page 163 considered the meaning of the terms “promotion” and “transfer”. He said:

“A promotion to fill a vacant position occurs when an officer is substantively raised from the position he holds to a position of higher classification.  A transfer to fill a vacant position occurs when an officer is substantively moved from the position he occupies to another position of equal classification. It is because there is no change of classification that a right of appeal is not conferred in the case of such a transfer.  The effect of such a transfer or promotion is that the officer ceases to occupy substantively the position he previously held and thereafter substantively occupies the position to which he is promoted or transferred subject, in the case of promotion, to appeal. The officer so transferred or promoted will continue to fill the new position until he is transferred or promoted to fill another position or until he resigns or otherwise leaves the Service.”

20 It is submitted that it is clear that within the public sector a transfer is a permanent move at the same level of classification and a promotion is a permanent appointment to a new position of higher level. 

21 The Claimant on the other hand argues that construing the terms “promoted” and “transferred” by reference to other legislation such as to the PSMA is both inappropriate and impermissible having regard to what was said in Australian Electrical, Electronics, Foundry and Engineering Union (WA Branch) v Minister for Health (1991) 71 WAIG 2253 and in Norwest Beef Industries Ltd v Australian Meat Industries Employees Union (WA) (1984) 64 WAIG 2174.   He submits that a literal interpretation of the relevant provisions based upon their “ordinary commonsense English meaning” ought to be performed and accepted, even if that leads to a result which may be “inconvenient” or “unfair”.   A departure from such approach is only warranted when ambiguity arises or, alternatively the interpretation leads to an “absurd, extraordinary, capricious, irrational or obscure” result or where the literal reading does not conform to the legislative intent as ascertained from its provisions.  It is only in those circumstances that resort will be had to extrinsic material to give effect to the purport and object that cl 83 of the Agreement is trying to achieve.

22 The Shorter Oxford English Dictionary on Historical Principles defines “promote” to mean “to advance (a person) to a position of honour, dignity or emolument; to raise to a higher grade or office.”  It defines “promotion” as meaning “advancement in position; preferment.”   “Transferred” is defined therein to mean “to convey or take from one place to another.”

23 The Claimant asserts that when read in accordance with its ordinary commonsense English meaning, both the object and purport of the terms used in cl 83 of the Agreement, are without ambiguity or incongruity.  It provides an entitlement for reimbursement of prescribed expenses incurred in the sale and purchase of a home, by an employee who in the course of employment, moves or is moved from one place to another across localities provided that such entitlement is not ousted by the exclusionary provisions within the clause.   He says that the Respondent is by reference to extrinsic material seeking to qualify the terms “transferred” or “promoted” by importing the notion of permanency however there is no justification for that.

24 In considering this matter I find myself in complete agreement with the submissions made by the Claimant that clause 83 of the Agreement, must be construed having regard to the normal commonsense English meaning given to the words used in that provision. In doing so, the words used in the clause must be construed in the context of the Agreement and its scheme as a whole, so as to discern its intent (see Project Blue Sky Inc and others v Australian Broadcasting Authority (1998) 194 CLR 355 at paragraph [69]). There is, in the circumstance, no need to refer to other materials in order to construe its meaning.

Was the Claimant Promoted?

25 The appointment of the Claimant to the position of Program-Coordinator Middle Schooling – Curriculum and Care at Busselton Senior High School for a fixed term was not a promotion.  Any promotion requires a substantive move to a higher grade or position.  It requires advancement.   The Claimant did not advance in position when he was first appointed to Busselton Senior High School.  His substantive position remained the same throughout such appointment, that being a Level 3 Classroom Teacher notwithstanding that he was working at a higher level and receiving a higher income.  The effect of a promotion is that the officer ceases to occupy the substantive position previously held and thereafter substantively occupies the position to which he has been promoted.  That simply did not occur in the Claimant’s case.

26 The ordinary English meaning to be given to the word “promoted” is that of an elevation to a higher position.  A person acting at a higher level is not promoted to that position because he or she continues to retain his or her substantive lower position.  In this instance the Claimant well understood that he held the position of Program-Coordinator Middle Schooling – Curriculum and Care in an acting capacity.  Indeed his email to the Respondent sent 28 August 2008 reflects that he well understood that he had never been promoted to that position at Busselton Senior High School.  He had retained his substantive Level 3 position as a Classroom Teacher.  If he had in fact been promoted as suggested then his most recent permanent appointment to Busselton Senior High School would have been a demotion.  He has not been demoted but rather continues to occupy the same substantive position that he previously held.

Was the Claimant Transferred?

27 The ordinary English meaning of “transfer” is to “take from one place to another.”  It denotes movement from one place to another.   “Move” is defined in the Shorter Oxford English Dictionary on Historical Principles to mean inter alia “a change of house….”.  In the present context if an employee moves or is moved in his or her employment from one work place to another and in the process changes houses then a transfer takes place.  The Claimant moved from Perth to work in Busselton requiring a relocation of residency.  That is to be distinguished from a temporary deployment in which residency does not change.   I am of view that the Claimant was transferred from Perth to Busselton because he and his family relocated there, albeit by his own volition. 

28 The terms of the provisions of cl 83 of the Agreement creates an entitlement with respect to the reimbursement of “prescribed expenses” in the form of a property allowance when an employee moves or is moved from one place of employment to another across localities and that movement is the reason why the employee has sold his or her former home in the former locality and has purchased another in the new locality.  The entitlement is only ousted by the expressed exclusionary provision of   cl 83 of the Agreement which does not have application in this instance.

29 The Claimant, a Level 3 Classroom Teacher moved from Perth to Busselton in the substantive position of Level 3 Classroom Teacher, to work in an administrative role at a higher rate of pay.  In order to do so he moved across localities.  He sold his home in Perth by reason of that move and for the same reason purchased a new home in Quindalup.  He incurred certain expenses in doing so and is accordingly entitled to a property allowance to defray the costs incurred in doing so. 

Conclusion

30 Clause 83.2 of the Agreement relates to movement from one locality to another and not the movement from one position to another as was the case in Excell v Harris and others 51 ALR 137.  To restrict the meaning of “transfer” so it relates only to the movement from one substantive position to another substantive position across localities would be to import a qualification which is neither expressed nor implied by the provision.  Clearly the provision is aimed at assisting teachers who change house because of a move from one location to another.  That is what took place with the Claimant.

31  I find that the Claimant is entitled to a property allowance.

G Cicchini

Industrial Magistrate