Industrial Relations Commission New South Wales Medium Neutral Citation: Police Association of New South Wales v Commissioner of Police [2019] NSWIRComm 1006 Hearing dates: 22 and 23 November 2018 Date of orders: 25 January 2019 Decision date: 25 January 2019 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: (1) Sergeant Lamming was a Transferred Officer as defined in cl 76.7 of the Crown Employees (Police Officers – 2014) Award. (2) Sergeant Lamming is entitled to reimbursement of stamp duty paid in respect of the purchase on 27 June 2017 of the residence at Zetland, in accordance with cl 90.2.2 of the Award. (3) I recommend that the Commissioner make payment to Sergeant Lamming in reimbursement of the stamp duty paid by him in respect of the purchase of the Zetland property, plus interest. (4) The parties are to confer with a view to agreeing on the amount to be paid by the Commissioner to Sergeant Lamming and the time within which such payment is to be made. (5) The matter is adjourned to 22 February 2019. (6) Liberty is reserved to the parties to have the matter re-listed on reasonable notice. (7) If that liberty is not exercised by 22 February 2019 the matter will be closed administratively. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – award interpretation – principles to apply – whether words "who…finds it necessary" requires objective or subjective construction – whether words "as a consequence of" add a further, objective threshold for entitlement Legislation Cited: Industrial Relations Act 1996 (NSW) ss 8, 130, 175 Cases Cited: Braunstein v Accidental Death Insurance Company (1861) 121 ER 904; 1 B & S 781 Jurecek v Director, Transport Safety Victoria (2016) 260 IR 327, [2016] VSC 285 State Drug Crime Commission of NSW v Chapman (1987) 12 NSWLR 447 State Transit Authority (NSW) v Australian Rail, Tram and Bus Industry Union (NSW Branch, Bus and Tram Division) (2014) 247 IR 129; [2014] NSWIRComm 41 Category: Principal judgment Parties: Police Association of New South Wales (Notifier) Commissioner of Police (Respondent) Representation: Counsel: M Gibian SC (Notifier) M Seck (Respondent) Solicitors: Bartier Perry (Respondent) File Number(s): 2017/368766 Judgment 1. The Police Association of New South Wales ("Association"), the notifier, represents Sergeant Nathan Lamming, who is employed by the Commissioner of Police ("Commissioner"), the respondent. 2. In 2017 Sergeant Lamming, in the course of his employment, was transferred from Griffith, NSW to Kings Cross in Sydney. He subsequently bought a house, with his wife, at Zetland in Sydney, which he asserts he did as a consequence of the transfer. He has claimed, pursuant to the Crown Employees (Police Officers – 2014) Award ("Award"), reimbursement of the stamp duty he paid on the purchase. 3. The Commissioner denies that Sergeant Lamming has any entitlement to such reimbursement. 4. Correspondence between the parties failed to resolve the dispute. Consequently, on 6 December 2017 the Association, on behalf of Sergeant Lamming, notified the Industrial Registrar of the dispute pursuant to s 130 of the Industrial Relations Act 1996 (NSW) ("Act"). 5. The hearing in this matter took place on 22 and 23 November 2018. Mr M Gibian SC of counsel appeared for the Association. Mr M Seck of counsel appeared for the Commissioner. 6. The Association read two statements of Aleksandar Boromisa dated 13 March 2018 and 17 May 2018 respectively; two statements of Sergeant Lamming dated 12 March 2018 and 17 May 2018 respectively; a statement of Kellie Lee Lamming dated 12 March 2018; and, a statement of Brooke Jones dated 10 May 2018. The Association also relied on written submissions which it had filed. 7. The Commissioner read a statement of Angela Whitton dated 27 April 2018, which served amongst other things to introduce into evidence a bundle of documents that were separately tendered. The Commissioner also relied on written submissions. Background 1. Sergeant Lamming has been employed by the Commissioner since 16 December 2005. 2. Sergeant Lamming is married to Kellie Lee Lamming (née Ward), who is also employed by the Commissioner, currently as a sergeant. (At the hearing, Kellie Lamming stated that when she was utilising her work title she preferred to use "Ward" as her surname. She otherwise goes by the name "Mrs Lamming". During the hearing she was most often referred to as "Sergeant Ward". With respect, for consistency I will also refer to her as "Sergeant Ward".) 3. On 3 January 2007 Sergeant Lamming, with another person, purchased a residential property at Fairy Meadow in New South Wales. Fairy Meadow is approximately 4 kilometres north of the city centre of Wollongong. Sergeant Lamming became the sole owner of the Fairy Meadow property on 26 May 2008. 4. Sergeant Lamming resided at the Fairy Meadow property until approximately August 2009, when he relocated as a result of a work-related transfer. 5. Sergeant Lamming retained ownership of the Fairy Meadow property as an investment property. 6. On 16 August 2015 Sergeants Lamming and Ward, who immediately prior had been stationed at Batemans Bay, were transferred to the Local Area Command ("LAC") at Griffith, New South Wales as a result of each having successfully applied for Leading Senior Constable vacancies. 7. On 26 October 2015 Sergeants Lamming and Ward purchased a property in Tucker Street, Griffith. They resided together in that property. 8. On 26 April 2016 Sergeant Ward (then a Leading Senior Constable) obtained a promotion to the rank of sergeant and was awarded a transfer to Surry Hills in Sydney. 9. On 13 July 2016 Sergeant Ward moved into the Fairy Meadow property. She commuted to work at Surry Hills from Fairy Meadow. 10. Sergeant Lamming continued to work in Griffith. On 3 August 2016 he moved out of the property at Tucker Street, Griffith into rental accommodation at Hanwood, New South Wales. 11. On 1 March 2017 Sergeant Lamming (then a Leading Senior Constable) was offered a sergeant promotional position at Kings Cross LAC in Sydney. He accepted the offer. His last shift at the Griffith LAC was on 22 April 2017. 12. Sergeant Lamming arranged to move his household belongings from the Griffith and Hanwood properties to a storage facility at Waterloo in Sydney. The goods were collected by the removalists on 26 April 2017. 13. Sergeant Lamming moved into the Fairy Meadow property with Sergeant Ward. He commuted to work at Kings Cross LAC from 2 May 2017 (his first rostered shift at that LAC). 14. On 30 April 2017 Sergeants Lamming and Ward submitted an offer to purchase a property at Zetland in Sydney. After some negotiation, contracts were exchanged. Settlement of the purchase took place on 27 June 2017. Stamp duty paid on the purchase was $27,865. 15. Sergeants Lamming and Ward moved into the Zetland property on 28 June 2017. The issues in dispute 1. Sergeant Lamming seeks reimbursement of the stamp duty paid on the purchase of the Zetland property. 2. The claim is made pursuant to the Award, which it is not disputed was the applicable instrument at all relevant times. The Award relevantly provided as follows: SECTION 7 - TRANSFERRED OFFICERS ENTITLEMENTS & COMPENSATION 76. Definitions … 76.4 "Location" within the Metropolitan Area means duty at a Local Area Command or duty in a working environment under the auspices of a Region Commander, or a Branch, Squad, Directorate or Bureau. "Location" outside the Metropolitan Area means duty at a Police Station within a Local Area Command. 76.5 "Metropolitan Area" means the Sydney Region but also includes the area referred to as the Central Coast on the northern line as far as Gosford, the area on the western line as far as Mount Victoria and on the Illawarra line as far as Wollongong. … 76.7 "Transferred Officer" means an officer who has been assigned to a new Location, other than from one part of the metropolitan area to another, at which duty is to be performed, and who, as a consequence of such assignment, finds it necessary to leave their existing residence and seek or take up a new residence, but shall not include an officer transferred; 76.7.1 at the officer's own request subject to clause 77, or 76.7.2 under an arrangement between officers to exchange positions, or 76.7.3 for disciplinary reasons under the provisions of Section 173 of the Police Act 1990. … 90. Refund of Stamp Duty, Registration of Transfer and Mortgage Fees … 90.2 A transferred officer who as a consequence of the transfer to a new location: 90.2.1 does not sell a residence at the former location, but 90.2.2 buys a residence or land upon which to erect a residence at the new location, shall be entitled to reimbursement of: (a) stamp duty paid in respect of the purchase of the residence or the land, and a house erected on that land at the new location, (b) stamp duty paid on any mortgage entered into in connection with the purchase and (c) registration fees on transfer and mortgages on the residence or the land and house erected on that land provided the officer enters into occupation of the residence within 15 months of transfer to the new location. 1. In this decision, where I make reference to "Location", "Metropolitan Area" or "Transferred Officer", I am referring to those terms as defined by the Award. 2. On or about 10 March 2017, with the assistance of the Association, Sergeant Lamming sought clarification from the Transfers Unit of the New South Wales Police Force ("NSW Police") of his conveyancing-related entitlements as a result of his transfer to Kings Cross. At that stage, Sergeant Lamming was asserting an entitlement to benefits beyond the stamp duty to which his claim is now confined. 3. In an email to Sergeant Lamming sent on 10 March 2017, Senior Sergeant Stephen Warren, Coordinator, Transfers Unit with NSW Police wrote as follows: "I have spoken with Alex from the PANSW this morning and he asked me to write to you with the Transfers Unit position in relation to your conveyancing related entitlements as I understand you may be in the process of considering the purchase of a residence in Sydney. … Tucker Street was not your primary residence upon your promotion. You are the beneficiary of rental income from the dwelling and as such you cannot sell this premise as a result of your transfer. While you could complete a 'purchase only' transaction in your new location (Kings Cross LAC) if you needed to buy, Transfers['] position is that you and your wife have a satisfactory residence in which you can both reside and thus do not need to purchase. In summary, you cannot sell and do not need to buy." 1. On 20 April 2017 the Association wrote to Superintendent Chris Clark, Commander, Workforce Management Branch of NSW Police. The letter challenged the advice received by Sergeant Lamming on 10 March 2017 and sought payment of the costs claimed by him. The letter set out the basis on which it was said that Sergeant Lamming was entitled to those costs under the Award. 2. In a letter dated 2 June 2017 Superintendent Clark responded to the Association's letter. Superintendent Clark's letter included the following statements: "…I am not convinced that Sergeant Lamming finds it necessary to leave his existing residence and seek or take up a new residence as a consequence of him being assigned to a new location within the metropolitan area. … It is not assumed that Sergeant Lamming lives in Fairy Meadow. The fact however is that Sergeant Ward and he own a residence at Fairy Meadow which is within the 'location' defined by the Award and which is occupied by Sergeant Ward. That property could have been sold as a consequence of their transfer to Far South Coast LAC in which there would not be an issue today. They would have to purchase a residence in the Sydney metropolitan area following their transfers from Griffith. Sergeant Lamming can now purchase a property wherever he likes but is not entitled to claim costs associated with the purchase because his primary residence at Griffith was not the residence purchased by Sergeant Ward and himself and he already owns a property at his new 'location'. I believe it is the case that Sergeant Lamming and Sergeant Ward are the joint owners of a residence at … Fairy Meadow, that this is the primary residence of Sergeant Ward, and that the residence is within the Sydney metropolitan area. Sergeant Lamming is not being forced to reside in any particular locality. If Sergeant Lamming wishes to reside away from his spouse and purchase an apartment for himself at Kings Cross, he may do so. That is not open to entitlements under the Award though. … The new location is in the Sydney metropolitan area as is the property available to him and which is currently occupied by Sergeant Ward. Sergeant Lamming is not required to relocate to Kings Cross. He is required to relocate to the Sydney metropolitan area where he already owns a residence. I cannot conclude that that the original decision to decline transfers costs to Sergeant Lamming for the purchase of a residence in the Sydney metropolitan area was flawed." 1. In a further attempt to resolve the matter, on 27 June 2017 the Association wrote to Mr Richard Griffiths at "Workplace Relations and Strategy" in NSW Police, invoking the dispute settlement provisions of the Award. Once again, the Association set out the asserted basis of Sergeant Lamming's claims under the Award. 2. In a letter in response to the Association dated 25 August 2017, Joe Vass, Manager, Employee Relations and HR Policy with NSW Police, wrote: "It is the view of NSWPF that costs do not apply to Sgt Lamming's purchase because the officer already owned a property in the Metropolitan Region. Further, sale costs do not apply because the house in question [Griffith] was not a 'residence' but rather an investment property. The officer relocated prior to confirmation and not as a 'consequence of the transfer'. …Both rulings are consistent with long term application of the Award by the Transfers Unit and with public sector wide practice." 1. In the proceedings, the Commissioner summarised his position as follows: "3. In contesting the matter, the Commissioner submits that: 3.1 Sgt Lamming was not a Transferred Officer within the proper meaning of cl. 76.7 of the Award because: (a) he had an existing residence within the Metropolitan Area (as defined); and (b) as such, it was not necessary for him to leave his existing residence and seek or take up a new residence as a consequence of his assignment, and, as a result, he is not eligible for reimbursement of stamp duty under cl. 90.2 of the Award. 3.2 In the event Sgt Lamming is a Transferred Officer, Sgt Lamming did not buy the Zetland Property as a consequence of his transfer from Griffith LAC, but as a consequence of a personal choice, including for convenience." 1. In support of these contentions the Commissioner adduced a significant amount of evidence to demonstrate, it is said, that as at the time of his transfer to Kings Cross LAC, Sergeant Lamming was resident in Fairy Meadow, and not Hanwood. In the alternative, and as a "fall-back position", the Commissioner submitted that Sergeant Lamming was resident in both Fairy Meadow and Hanwood. 2. In its submissions the Association put its case as follows: "3. On the plain meaning of the words used in clause 76.7 of the Award, Sergeant Lamming is a Transferred Officer because he was assigned from his position in Griffith to a new work location, namely, the Kings Cross LAC, and as a consequence found it necessary to leave his existing residence and take up a new residence in Zetland. 4. The submissions of respondent seek to impose additional restrictions on access to the entitlements of transferred officers which do not appear in the text of the provisions and could not be accepted. It is appropriate to return to the text of clause 76.7 which is as follows: 76.7 'Transferred Officer' means an officer who has been assigned to a new Location, other than from one part of the metropolitan area to another, at which duty is to be performed, and who, as a consequence of such assignment, finds it necessary to leave their existing residence and seek or take up a new residence, but shall not include an officer transferred; 5. The question of whether an offer is a 'transferred officer' for the purposes of clause 76.7 of the Award simply depends upon whether: (a) An officer has been assigned to a new Location, that is, assigned to duty at a different Police Station or Local Area Command (other than from a Location in one part of the metropolitan area to another). There can be no question that Sergeant Lamming was assigned to a new Location, that is, to Kings Cross LAC from Griffith and this was not an assignment from one part of the metropolitan area to another. (b) As a consequence of the assignment, the officer "finds it necessary" to leave his or her existing residence and seek or take up a new residence. Again, there is no question that, as a consequence of being assigned to work at Kings Cross LAC, Sergeant Lamming found it necessary to leave his existing residence and take up a new residence in Zetland for the reasons explained in his evidence. 6. That is sufficient to resolve the dispute in favour of Sergeant Lamming. Nothing more is required. … 7. The respondent's submissions read into clause 76.7 requirements which are simply not there and construe the text contrary to its plain and ordinary meaning. …" 1. On the basis of these submissions the Association contends that the question of Sergeant Lamming's residency is ultimately not relevant. All that is relevant is whether he found it necessary to change residences as a consequence of the transfer. To the extent that the Commission is required to consider the issue, however, the Association submits that at the time of his transfer to Kings Cross LAC Sergeant Lamming was resident at Hanwood. Legal principles 1. The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument): s 175 of the Act. The Award is an industrial instrument: s 8 of the Act. 2. The approach to the construction of industrial instruments is well-settled. In State Transit Authority (NSW) v Australian Rail, Tram and Bus Industry Union (NSW Branch, Bus and Tram Division) (2014) 247 IR 129; [2014] NSWIRComm 41 the Full Bench stated as follows at [26] – [31]: "26 This appeal falls mainly to be determined by the application of principles governing the interpretation of awards. In Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23, Walton J, President gave detailed consideration to the principles by reference to relevant authorities including the latest High Court authorities. 27 His Honour was able to distil from the authorities the following statement of principles at [115]: (1) The legal meaning of 'a provision of an award' is to be ascertained through a process of construction by which the intention of the provision is deduced. It is the duty of the court to give the words of the award a meaning that the authors of the award are taken to have intended them to have; (2) The process of construction must begin with a textual analysis of the words of the provision, that is, a consideration of the ordinary and grammatical meaning of the words; (3) Whilst the surest guide to the meaning of an award provision is language used in a provision of an award, the meaning of the text may require consideration of the context (which includes, inter alia, consideration being given to the instrument as a whole). Thus, the initial step to construction may involve construing the words of an award provision in context; (4) The consideration of the words of the provision of an award in context includes examining the general purposes and the policy of the provision derived from a statement of policy in the award or from the terms of the award. Thus, the legal meaning may be ascertained by reference to general purpose, consistency and fairness, although, again, the purpose of a provision derives in its text and structure. A relevant consideration in this respect is the mischief remedied by a provision. (See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47].); (5) An examination of the purpose of an instrument is very much part of the traditional approach to award interpretation. It was accepted by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops [1961] AR (NSW) 312 at 314 that it is proper to pay regard to 'the purposes for which a provision is intended' (as quoted in Bryce v Apperley at 452 and Kingmill at [63]). An application of this approach may be found in the judgment of Hill J in Australian Workers Union (NSW) v Pioneer Concrete (NSW) Pty Ltd (1991) 38 IR 365 at 380, where it was stated that provisions in awards must be construed reasonably and realistically, 'having regard to their purposes and objectives'. I will add further to this consideration when returning to the notion, developed in the dicta of Street and French JJ, that a generous construction should be adopted in the interpretation of awards; (6) The determination of the purpose or intention of a provision of an award neither permits nor requires a search for what those who drafted or made the award had in mind when the award was made: see Construction, Forestry, Mining and Energy Union (NSW Branch) v Delta Electricity [2003] NSWIRComm 135; (2003) 146 IR 360 at [44] and NSW Fire Brigades at [47]. Further, it is not for the court to construct its own idea of a desirable policy, import it to the award maker and then characterise it as the purpose of the provision: see Brown at [40] (Bathurst CJ). 28 His Honour also addressed the question of the extent to which extrinsic material may be employed in award interpretation. In that respect, Walton J concluded: [127] Understanding context will have utility if, and in so far as, it assists in establishing the meaning of an award provision. The context includes recourse to extrinsic materials but such considerations cannot displace the meaning of the text of a clause of an award or become an end in itself. [128] In order to ascertain the meaning of a provision of an award which is susceptible to more than one meaning, even after the consideration of the immediate context of a provision, recourse may be had to the circumstances surrounding the making of an award in order to see what the circumstances were with reference to which the words of the award provision were used. Within those parameters, reference may be had to a mutually known factual matrix present at the making of the award, including the conduct of prior negotiations, the forming of an agreement and, more generally, the history of the provision. Evidence is not admissible to ascertain the subjective intentions of the parties. Nor is evidence of their conduct subsequent to the commencement of the instrument admissible. 29 His Honour considered that the history of a provision of an award may form part of the consideration of context. In that respect, Walton J referred approvingly to what Burchett J (with whom Drummond J agreed) said in Short v F W Hercus Pty Ltd (1993) 40 FCR 511 at 517-518 of the use of history in the interpretation of awards: No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so. The rules of construction, Mason and Wilson JJ said in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 320, are really rules of common sense. Common sense would be much offended by a refusal to look at the facts I have summarised. As Isaacs J said in Australian Agricultural Co Ltd v Federated Engine-drivers' and Firemen's Association of Australasia (1913) 17 CLR 261 at 272, citing Lord Halsbury LC: 'The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it.' ... True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. 30 Walton J cited with approval authorities to the effect that awards should receive a generous construction: George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504; City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at [57]; Kucks v CSR Ltd (1996) 66 IR 182 at 184; Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [94] and [96] per Kirby J; Director of Public Employment (by her Agent the Commissioner of New South Wales Fire Brigades) v New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158; (2008) 180 IR 170 at [45]-[46]. The passage in Kucks cited by his Honour makes the point: It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. 31 Walton J completed his examination of the relevant authorities by stating the following conclusions: [142] Of course, a difference in the relative bargaining power of the parties is not relevant to the present matter but the requirement to have regard to all the circumstances of the case in which the actual words used are in harmony with the jurisprudence which I have reviewed above. In short, in the construction of an award, this methodology requires the Court to utilise a broad approach to the relevant words in their context, particularly their industrial context (and this may include relevant permissible extrinsic evidence but must disregard impermissible extrinsic evidence) in order to discern the meaning of those words which the drafters are properly taken to have intended. [143] The adoption of these principles will result, in my view, in avoidance, in the construction of awards, of a strict but unintended technical meaning being attributed to the particular words of an award or too much attention being given to mere infelicitous expression or inconsistencies. The Court should not strive for the discernment of an absurdity. The Court should endeavour to give a provision of an award a meaning consistent with the intention of the parties gathered from the words of the provision and from the whole award, having regard to the industry and industrial relations environment in which the award came to be made. As Kirby J put it, the construction should be one which contributes to a sensible industrial outcome, provided... such an interpretation may reasonably be available from the language used in the provision (that is, from the text of an award). [144] Ultimately, the adoption of such an approach to the construction of awards has limits. As I have mentioned, the principles of award interpretation cannot lead to an attempt to construe the terms of an award according to the subjective intention of the parties or result in an unreasonable or unnatural construction being placed on the words of an award. Attention must be fixed upon the ordinary meaning of the words used when read in context. As French J stated in City of Wanneroo at [57]: ..while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380): 'Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language.' We adopt his Honour's analysis and the principles and conclusions he draws from the authorities." 1. I will apply these principles. Consideration 1. There are two broad questions requiring determination. Firstly, was Sergeant Lamming a Transferred Officer as defined in cl 76.7 of the Award? Secondly, and if so, is he entitled to reimbursement of stamp duty pursuant to cl 90.2.2 of the Award? Was Sergeant Lamming a Transferred Officer? Objective or subjective construction? 1. On the first question, it is necessary to start with the language of cl 76.7. Leaving aside the exceptions in the clause, which are not directly relevant in the present matter, the clause requires the satisfaction of these conditions in order for an officer to be a Transferred Officer: 1. the officer is assigned to a new Location; 2. the assignment is not from one part of the Metropolitan Area to another; and 3. as a consequence of the assignment the officer finds it necessary to leave their existing residence and seek or take up a new residence. 1. It is not in dispute that the assignment of Sergeant Lamming from the Griffith LAC to the Kings Cross LAC was one to a new Location, and it did not involve a transfer from one part of the Metropolitan Area to another. 2. Where the parties differ is on the meaning to be given to the words "who, as a consequence of such assignment, finds it necessary to leave their existing residence and seek or take up a new residence". 3. In its outline of submissions, the Commissioner contended as follows: "64. The phrase 'finds it necessary' in the definition of Transferred Officer in cl.76.7 applies to both the requirement 'to leave their existing residence' and the requirement 'seek or take up a new residence'. 65. Whether it is 'necessary' to leave an existing residence and seek or take up a new residence needs to be determined objectively. To find necessity is simply determined by an officer's subjective view would lead to irrational and perverse outcomes. … 75. In those circumstances, having regard to the fact that Sgt Lamming's existing residence was (or at least included) the Fairy Meadow Property which is in the Metropolitan Area, it would not have been 'necessary' for him to leave the Fairy Meadow Property. Such a finding is consistent with the context and structure of the Award that does not provide entitlements when an officer moves from one part of the Metropolitan Area to another. Sgt Lamming resided in the Metropolitan Area such that it was not necessary for him to seek or take up a new residence. 76. Further, it was not 'necessary' for Sgt Lamming to purchase the Zetland Property given that he already owned a property within the Metropolitan Area, that he had used as his residence, and was using as his residence at the time of the transfer. The fact that the Award denies compensation where there is a transfer between two places within the Metropolitan Area is a strong contextual indicator that the purchase of the Zetland Property was not necessary for the purposes of the Award." (Footnote omitted) 1. These submissions in large part reflect the position taken by the Commissioner in the correspondence referred to at [27], [29] and [31] above. 2. At the hearing, Mr Seck submitted that there needed to be, effectively, a two-step process. That is, there had to be an objective basis to demonstrate that it was necessary for the officer to leave their existing residence and to seek or take up a new residence, before it was then possible for the officer to "find" it so. 3. I am not persuaded by the Commissioner's submissions. 4. The primary difficulty with those submissions is that they ignore the words "who…finds it" which precede "necessary" in cl 76.7 of the Award. The Commissioner seeks to construe the clause as if it read, in effect, "…and for whom, as a consequence of such assignment, it is necessary to leave their existing residence and seek or take up a new residence". On a plain reading of the language, the words "an officer…who…finds it necessary" imports a subjective element into the definition. The language directs attention to what the officer found necessary. 5. The words "finds it necessary" are used also in cll 82.2.2 (dealing with reimbursement of the costs of temporary accommodation where a transferred officer finds it necessary to secure board and lodging at the new Location pending permanent accommodation becoming available) and 84.1 (dealing with the payment of costs for an officer who finds it necessary to transport a private vehicle to a new Location) of the Award. 6. There is force to the Association's submissions that whether an officer would find it necessary to buy a new residence, obtain temporary accommodation or transport a private vehicle as a consequence of an assignment to a new Location is likely to depend to that officer's particular circumstances. It would therefore be logical for the Award to adopt language that reflects the need to take those circumstances into account rather than adopting a purely objective approach. 7. If it had been the intention that cl 76.7 be read in the manner contended for by the Commissioner, it would be expected that it would reflect the objective language adopted elsewhere in the Award. For example: 1. cl 12.2.2 provides for the payment of an allowance to an officer "compelled to live in a remote area"; 2. cl 13.1, which concerns part time employment, refers to situations "where it is necessary for the officer to work fewer hours per fortnight"; 3. cl 52.1, which concerns recall to duty, refers to "the necessity for a Non-Commissioned Officer to perform their duty"; 4. cl 84.1 allows for reimbursement of removal costs "actually and necessarily incurred"; and 5. cl 85 allows for the Commissioner to approve the storage of removals where the officer "is required to secure furniture while waiting to secure permanent accommodation". 1. I also do not accept the Commissioner's submissions as to the potential for "irrational or perverse outcomes" if the Association's construction of cl 76.7 is adopted. The clause does not confer an unfettered discretion on an officer to change residences with unqualified rights to particular benefits if he or she does so. As the Association submitted, the use of the word "necessary" imports qualifications. 2. In this regard the Association referred me to Jurecek v Director, Transport Safety Victoria (2016) 260 IR 327; [2016] VSC 285. In that case Bell J stated at [100] – [102]: "100. The appellant submitted that the tribunal adopted an interpretation of the expression 'necessary for one or more of its functions or activities' in IPP 1.1 that imposed too low a threshold. This raises a question of law. 101. As Gleeson CJ said in Mulholland v Australian Electoral Commission, 'the word "necessary" has different shades of meaning' depending upon the legislative context. After discussing several authorities in which the meaning of the word was considered, the Chief Justice stated: 'There is, in Australia, a long history of judicial and legislative use of the term 'necessary', not as meaning essential or indispensable, but as meaning reasonably appropriate and adapted.' 102. Similarly, the meaning of the word 'necessary' was considered in Pelechowski v The Registrar of the Court of Appeal (New South Wales). In that case, Gaudron, Gummow and Callinan JJ said: The term 'necessary' in such a setting as this is to be understood in the sense given it by Pollock CB in Attorney-General v Walker, namely as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in Div 4 of Pt 3 of the District Court Act. In this setting, the term 'necessary' does not have the meaning of 'essential'; rather it is to be 'subjected to the touchstone of reasonableness'." (Footnotes omitted) 1. The reference to the "touchstone of reasonableness" was drawn from State Drug Crime Commission of NSW v Chapman (1987) 12 NSWLR 447, to which the Commissioner referred me. At p 452 Allen J stated as follows: "As to the word 'necessary' it does not have, in my judgement, the meaning of 'essential'. The word is to be subjected to the touchstone of reasonableness. The concept is one as to what reasonably is necessary in a commonsense way. As Pollock CB said in Attorney-General v Walker (1849) 3 Ex 242; 154 ER 833: 'It may be stated as a general rule that those things are necessary for the doing of a thing which are reasonably required or which are legally ancillary to its accomplishment.' I do not consider any closer definition than that should be attempted. The word speaks for itself." 1. In Braunstein v Accidental Death Insurance Company (1861) 121 ER 904; 1 B & S 781 the Court considered a term of an insurance policy which provided that before any payment of the sum insured by any policy "proof satisfactory to the directors of the [insurer] should be furnished by the claimant of the death or accident together with such further evidence or information, if any, as the said directors should think necessary to establish their claim". The Court held that this term must be understood to mean such evidence as the directors might reasonably, and not such as they might unreasonably or capriciously require. 2. At p 909 Wightman J (with whom Blackburn J agreed) stated as follows: "It seems to me that a reasonable construction must be given to this clause…It only requires the introduction of the word 'reasonable', and that I say must be implied, to remove the difficulty…It is admitted that the assured might be required to produce a reasonable amount of evidence: but it is contended that the directors have no right to refuse, as the defendants admit by their demurrer that they have done, from capricious or unreasonable motives, to be satisfied with such evidence. It seems to me that that is an answer; that, by pointing out that they unreasonably and capriciously required evidence which was not necessary to satisfy them on any reasonable view of the case, it is shewn that they acted in contravention of what appears to me the proper and reasonable construction to be given to this clause." 1. The approach taken by the Court in Braunstein is of particular resonance, given the similarity in language used in the provision in that case ("think necessary") with that used in cl 76.7 of the Award. 2. It follows from these authorities that the "touchstone of reasonableness" is imported into cl 76.7 through the use of the word "necessary". That serves to avoid an officer unreasonably or capriciously changing residences and being entitled to claim benefits under Section 7 of the Award. 3. It further follows that it is not the case, as the Commissioner contended, that the Association is seeking to re-write cl 76.7 by adding terms that are not there; that is, by amending the language to read "finds it reasonably necessary". Reasonableness is incorporated through the use of the word "necessary". 4. I recognise that an assessment as to whether an officer had acted, or was proposing to act, unreasonably or with caprice would have to be determined on a case-by-case basis. However, that would be consistent with the language adopted in cl 76.7 of the Award, and the views expressed above at [47] – [50]. 5. Although the point was not advanced by Mr Seck at the hearing, for the sake of completeness, and in the context of the correspondence referred to at [29] above, I observe that there is nothing in the Award that requires the Commissioner to be "convinced" that an officer finds it necessary to leave his existing residence and seek or take up a new residence. Whether or not the Commissioner is so convinced might inform a decision as to whether to challenge an officer's claim for an entitlement on the basis, for example, that it is unreasonable or capricious. 6. However, the Award does not make the Commissioner the final arbiter as to the necessity or otherwise for the change in residence. This is not only clear from the terms of cl 76.7, but from an examination of the Award more broadly. If it had been intended to confer such discretion or authority on the Commissioner one would expect the clause to reflect the language of other provisions in the Award in which the Commissioner is given decision-making authority or discretion. For example: 1. cl 10.6 ("where the officer satisfies the Commissioner that"); 2. cl 10.9 ("where the Commissioner is satisfied"); 3. cl 17.15.3(c) ("in the opinion of the Commissioner"); 4. cl 19.5.1(c) ("in the opinion of the Commissioner"); 5. cl 20.2 ("if the Commissioner is satisfied that"); 6. cl 20.3.2 ("if the Commissioner is satisfied that"); 7. cl 33.4 ("The Commissioner will need to be satisfied"); 8. cl 82.6.4 ("where the Commissioner considers that"); and 9. cl 85 ("Where the Commissioner is satisfied"). 1. As cl 76.7 does not entail a purely objective test as to the necessity of an officer leaving their existing residence and taking up a new one, it is not possible to accept the Commissioner's submissions that the simple fact that an officer may own or have available a residence in the Metropolitan Area precludes them from being a Transferred Officer. Such an inflexible approach would be contrary to the subjective nature of the terms of cl 76.7. The existence of any residence in the Metropolitan Area, and its proximity to the new Location, would be relevant only to whether the officer could legitimately have found it necessary to change residences as a consequence of a transfer. 2. The Commissioner drew my attention to the fact that the Award does not confer benefits on an officer who is transferred between Locations, both of which are in the Metropolitan Area. This was said to evince "an intention that there is no inconvenience of the type justifying the provision of benefits under section 7 of the Award where an officer is able to travel to work from within the Metropolitan Area". 3. Even if it were found that the Award evinces such an intention, it could not displace "the ordinary and grammatical meaning of the words" in cl 76.7, to use the words of Walton J cited in State Transit Authority. As his Honour stated, context cannot displace the meaning of the text of a clause of an award. If the proper construction of the text of cll 76.7 and 90.2 results in the conferral of an entitlement on an officer, it would be contrary to that authority to rely on an intention inferred from other provisions of the Award – or, more accurately, the absence of other provisions in the Award – to disentitle the employee to that benefit. 4. In any event, I am not satisfied that the fact that some employees do not receive a benefit available to others is enough to support drawing an inference as to intention as broad as that for which the Commissioner contends. 5. For these reasons, I conclude that cl 76.7 does not call for the objective construction pressed by the Commissioner. I prefer and accept the construction advanced by the Association. Residence not determinative 1. It follows that it is not necessary to explore in depth the evidence and submissions regarding Sergeant Lamming's residency, or make a finding on whether it was in Hanwood or Fairy Meadow. 2. Whether or not an officer's residence is inside or outside the Metropolitan Area is not of itself determinative of anything in the context of cl 76.7. The location of the new residence in comparison to the first, and more particularly to the new Location, would go to whether the officer could legitimately contend (having regard to the matters discussed at [51] – [59] above) that he or she found it necessary to move as a consequence of a transfer. 3. Without having to determine (and not determining) the issue, it is possible to proceed on the assumption that Sergeant Lamming was resident in Fairy Meadow. If it can be shown that Sergeant Lamming found it necessary, within the meaning of cl 76.7, to move from that residence to Zetland then the same result would have to be reached, if more emphatically, if he was resident in Hanwood, or in both Fairy Meadow and Hanwood. Did Sergeant Lamming find it necessary to move? 1. It perhaps goes without saying that Sergeant Lamming contends that he found it necessary to move from Fairy Meadow to Zetland. There would be no basis for the Association's case did he not do so. The issue is whether there is anything unreasonable, irrational or capricious in him having so "found it necessary" that would otherwise disentitle him to the benefits in cl 90.2. 2. In his statement of 12 March 2018, Sergeant Lamming deposed as follows: "7. On the 3rd of August, 2016 I moved out of Tucker Street. I moved into rented share accommodation at a farm cottage on the outskirts of Griffith with another officer …I was only ever going to be living at that farm cottage temporarily until I secured a promotional appointment and I could set up a new residence with my wife at that new location. 8. Due to not knowing where I might ultimately secure a promotion, we did not actively seek out a new residence at that time. We wanted our next primary residence to benefit both Kellie and I and be the most convenient for commuting between our places of work. … 10. After Kellie won her spot I heavily increased the number of promotional positions I submitted preferences for. Towards the end of 2016 it became apparent the promotional process was far more competitive than we had thought. It took a lot longer than Kellie and I had expected for me to be successful in securing a promotion, which meant we lived apart (and I lived in the temporary share accommodation at the farm cottage) for much longer than anticipated. … … 14. Until A1 Moving picked up my belongings on the 26th of April, 2017 I remained working full time in Griffith. A1 Moving conveyed my property from Tucker Street and the farm cottage where I was, to a Kennards Storage facility in Waterloo as this was the closest area we were looking at to buy. It was always going to be temporary storage until we found an appropriate residence upon my having secured an appropriate promotional appointment. … 21. The position I was promoted to is a general duties Supervisor at Kings Cross LAC. This position requires me to work rotating 12 hour shifts, usually two day shifts then two night shifts. The day shifts start at 6.00am and nights start at 6.00pm. Due to being an operational first response position it is expected that I be operationally ready (full uniform, appointments, radio, body worn video, taser equipped) prior to the commencement of my shift. I need to arrive at Kings Cross Police station around 5.30am to allow sufficient time to be ready. … 23. We owned a residence in Fairy Meadow that Kellie had been temporarily residing in whilst I secured a promotion. When speaking with Kellie about the travel times, both public and private, it became apparent that it was unsuitable for me to commute from that location in Fairy Meadow. 24. I checked train times from North Wollongong train station (closest Station to Fairy Meadow residence). The train did not leave from North Wollongong Train Station that early in the morning and I would have to drive to Wollongong Station (10mins, 3.2km). On Weekdays trains left Wollongong Station at 3.11am and arrived at Kings Cross at 5.17am (2hours 7mins). Coming home, the trains left from Kings Cross at 6.31pm and arrived at Wollongong 8.28pm (1hour 57mins). … 25. Due to working 12 hour shifts this would make a normal working day 16 hours. Between day shifts that would mean I was at home for a maximum of 6 hours. This is without consideration of any overtime which would further add to my travel time. In general duties overtime is worked fairly often. 26. I looked at driving the entire distance. In the morning the commute was just on an hour. Coming home of an evening was nearly twice that long due to heavy traffic backed up on the Eastern Distributor, Brighton Le Sands, St George and Sutherland. There is no free parking around the Kings Cross Police Station and commercial parking was expensive having to pay for all day parking. 27. With driving being the quickest option it still had my 12 hour working day at 15 hours on average away from home. 28. This is unrealistic to maintain without suffering fatigue, mental and physical stress. I didn't think it was sustainable. 29. My position is a fully operational first response position which requires me to be alert and of clear focus. I am working on the street in Kings Cross where I rely upon being alert and focused. Being a Sergeant I lead a team of 8 constables that also rely on me for support and guidance. I cannot risk being tired, fatigued or unfocused due to a lengthy commute." 1. In her statement, Sergeant Ward deposed as follows: "10. …Fairy Meadow was a property that was owned by me and Nathan. At the time I moved back to the address on 13th July 2016 it was tenanted. On deciding that Nathan would stay in Griffith we decided that I would temporarily live at this address until he was successful in obtaining a promotion. We would then decide where we would move together so that we could both easily commute to and from work. Nathan and I were not planning on living at Fairy Meadow. It also meant that we would not have the additional cost of me renting another premise close to my work as Nathan was already paying rent where he was residing in Griffith. 11. Residing at the Fairy Meadow address meant that I had to commute to work to complete 12-hour shifts, 6:00am to 6:30pm, and vice versa. I was unable to drive as no parking is available at my work location and although there is parking in the vicinity it was expensive and unaffordable. I found the commuting tiring and while on a block of 4 shifts, consisting of 2 days and 2 nights, work was my life. I was not able to do any other activities outside of traveling and working for that time. My days became 16-hour days. Over a 4-day block this equates to another 12-hour shift in travel time, 60 hours a week with a maximum of 6 hours sleep between day shifts and not much more between night shifts. Fatigue was hard to manage, and at times I struggled. Whilst this was very fatiguing and difficult it was only ever supposed to be a temporary situation pending Nathan's transfer. 12. The only way to commute other than driving from Fairy Meadow is on the train. For a day shift to start at 6:00am, this meant I had to catch the 03:20am train from Wollongong. This required me to be awake no later than 02:40am to get to Wollongong to catch the train to Central. The return train then arrives at Wollongong at 18:47pm. 13. I could and would also drive 40 minutes to Sutherland and catch the train at 04:31am - 04:37am to Central, which meant I would wake up at 03:05am. The return trip would get me in the door at 19:20 on a good run. However, after nightshift the drive from Sutherland to Fairy Meadow was a struggle. On 2 occasions I had to stop to rest before continuing due to fatigue. I would sometimes sleep for half an hour before leaving the train station to drive home, breaking my sleeping pattern. 14. Nathan attempted to get a promotion every month we were apart. Given his position on the Promotion List, it took a lot longer than expected. In the result I had to commute for about 11 months to work. For the reasons outlined above I found this difficult and challenging and I do not consider that Fairy Meadow was an appropriate place to reside at permanently." 1. The Commissioner contends that it was not necessary for Sergeant Lamming to move and that, consequently, there was no basis on which he could have found that it was. 2. I reiterate the point made at [62] above that simply because Fairy Meadow and the Kings Cross LAC are both in the Metropolitan Area does not of itself mean that a change to another residence in the Metropolitan Area may not be necessary. 3. The Commissioner adduced evidence of the distances travelled to work by other employees of the Commissioner. He submits that travel from the Wollongong Area to the Sydney central business district is "undertaken by many citizens daily". 4. In large part the evidence and submissions on which the Commissioner relies in this regard assumes a purely objective approach to cl 76.7 (which is to be expected, given the Commissioner's primary position on the approach to construction of that clause). Given the findings that I have made regarding the proper construction of cl 76.7, the circumstances in which other people find themselves is of limited relevance in determining what Sergeant Lamming found necessary in his own situation. 5. The Commissioner submits that the trip from Fairy Meadow to Kings Cross LAC, using a combination of private vehicle and public transport, can be done in approximately one and a half hours. It adduced evidence of estimated trip times, involving Sergeant Lamming driving to different train stations and taking a train into the city. Sergeant Lamming works both day and night shifts. The fastest option identified by the Commissioner for the AM shift would take 73 to 92 minutes from Fairy Meadow to Kings Cross. The return trip (which Sergeant Lamming would presumably need to take to collect his car) would take 71 to 109 minutes. On the PM shift the fastest option identified by the Commissioner would take 79 to 93 minutes from Fairy Meadow to Kings Cross, with a return trip between 81 and 111 minutes. It is noteworthy that the return trip, after Sergeant Lamming has been at work for 12 hours, might take close to two hours. The Commissioner seems to assume that these commuting times are objectively safe and reasonable. 6. The Commissioner further relies on the fact that Sergeants Lamming and Ward had not, when they were residing at Fairy Meadow, made any complaints to their superiors about the commuting they were required to do. As Mr Seck stated (Tcpt 23 November 2018, p 37 (7-16)): "Now what's also relevant Commissioner, is that Sergeant Ward did that commute for a one year period. Sergeant Lamming did that for just under a two month period. Neither of them raised any safety issues. Neither raised any issues in terms of impacting upon their competence [or] performance." 1. It is not necessary for me to determine whether, objectively, commuting to and from Fairy Meadow was unsafe or unreasonable, or did impact or could have impacted on Sergeant Lamming's competence or performance. Clause 76.7 does not require a finding in that regard. It is enough that Sergeant Lamming, having made the commute for two months and with the shared experience of Sergeant Ward, found that to maintain the commuting arrangements could have had a detrimental impact on safety and performance. There was nothing unreasonable in him forming that opinion. 2. That Sergeant Ward could make the commute to Sydney for eleven months, and Sergeant Lamming for two, is not determinative of anything other than the fact that the commute is possible (which is not in contention). This does not preclude Sergeant Lamming forming the view that the commute was not sustainable in the longer term, and so finding it necessary to move to a residence closer to the Kings Cross LAC. 3. The fact that Sergeants Lamming and Ward may not have voiced their concerns to their superiors is also of no particular consequence. Nothing in the Award required them to do so. The failure to relay their concerns to their superiors does not preclude a finding that Sergeant Lamming found it necessary to change residence. One might also ask hypothetically what benefit Sergeants Lamming and Ward would have derived from taking their concerns to management, given the correspondence referred to at [27], [29] and [31] above. 4. The Commissioner further contends that Sergeant Lamming did not move out of necessity, but "for reasons of personal convenience". It cites Sergeant Lamming's evidence at [8] in his statement of 12 March 2018, reproduced at [71] above. 5. There is no inevitable conflict between necessity and convenience. Rather, one would be expected to entail the other. An officer who finds it necessary to move as a result of a transfer is most likely to seek or find a residence situated more conveniently to their new Location. 6. Further, taking into account all of the evidence, Sergeant Lamming's use of the word "convenient" in his statement should not be over-emphasised. During cross-examination, Sergeant Lamming was taken to a spousal transfer application he had made in mid-2016. The application was for a position in Campbelltown. In that application (which ultimately he elected not to pursue) Sergeant Lamming stated that it was envisaged that, if the application were successful, he and Sergeant Ward would reside in the Illawarra. He accepted that this was a reference to the Fairy Meadow property. 7. In this context, Sergeant Lamming's reference in his statement about moving to a "convenient" residence cannot be taken so far as suggesting that any move from Fairy Meadow would only have been on the basis of convenience, as opposed to necessity. As he also stated at [8] in his statement of 12 March 2018, he did not actively seek a new residence due to not knowing where he might secure a promotion. Depending on his new Location, convenience might have entailed no move at all, as appears would have been the case had he proceeded with the transfer to Campbelltown. 8. The Commissioner adduced evidence relating to a previous dispute with the Association, involving a Sergeant McCarthy. He drew attention to the position taken by the Association in that case, and contrasted it with that taken in the present one. 9. In light of my findings as to the proper approach to the construction of cl 76.7, it is not necessary to traverse the situation involving Sergeant McCarthy in any detail. What he may have found necessary in his personal circumstances, and for which the Association advocated on his behalf, is of no particular weight in determining what Sergeant Lamming found necessary in his own circumstances. 10. I am satisfied on the evidence that Sergeant Lamming found it necessary to leave Fairy Meadow and to seek and take up a new residence elsewhere. There was nothing unreasonable or capricious in him so finding. 11. As it is not in dispute that the assignment of Sergeant Lamming from the Griffith LAC to the Kings Cross LAC was one to a new Location, which did not involve a transfer from one part of the Metropolitan Area to another, it follows that Sergeant Lamming was a Transferred Officer for the purposes of the Award. 12. I turn next to deal with submissions made by the Commissioner regarding the effect of cl 77.1.8 of the Award, which is in these terms: The Commissioner may, in extraordinary circumstances, approve an officer as a Transferred Officer, to receive eligibility under this clause, where the Commissioner is satisfied that the officer's hours of duty at the new Location, or available transport to the new Location, make it impracticable for them to travel from home to their location. 1. The outline of submissions filed for the Commissioner made reference to the fact that "[d]iscretion exists in the Commissioner of Police in cl 77.1.8 to treat an officer as a Transferred Officer". The submissions go on to say: "78.7 by [Sergeant Lamming] not making an application under cl 77.1.8, it can be inferred that having to travel from Fairy Meadow to Kings Cross is not impracticable or an extraordinary circumstance." 1. During the hearing, Mr Seck submitted that "you actually have to be a [T]ransferred [O]fficer in order for the Commissioner's discretion to be engaged": Tcpt 23 November 2018, p 32 (31-32). On this construction, the clause is confined to permitting the Commissioner to provide benefits to Transferred Officers that they would otherwise not be able to access, due to them not meeting the particular requirements of a provision of Section 7 of the Award. This position appears to be inconsistent with the way in which cl 77.1.8 was paraphrased (permitting the Commissioner to "treat an officer as a Transferred Officer") in the Commissioner's outline of submissions. 2. I do not construe cl 77.1.8 in the manner proposed by Mr Seck. On my reading, the clause allows the Commissioner to confer on an officer the entitlements under Section 7 of the Award, even if the officer does not otherwise meet the requirements of cl 76.7, through the Commissioner approving the officer "as" a Transferring Officer. This seems to be the most natural reading of the terms of the clause. It is also consistent with cl 76.7.1 of the Award, which would seem to provide for an officer who would otherwise be excluded from the definition having entitlements "subject to clause 77". 3. If an officer is a Transferred Officer, the entitlements in Section 7 of the Award flow to him or her as a consequence (obviously, subject to the relevant provisions). If not, cl 77.1.8 confers on the Commissioner the discretion to make those benefits available to an officer under the terms of the clause. 4. This is a reasonable construction of the clause given the wide definition given to "Metropolitan Area" (see [24] above). Under the terms of cl 76.7 an officer who is transferred between Locations in the Metropolitan Area cannot be a Transferred Officer. To use an example cited in the proceedings before me, an officer assigned from Gosford to Wollongong would have no entitlements under Section 7 of the Award, even if (as is likely) such a transfer necessitated a change in the officer's residence. Clause 77.1.8 is available to avoid any unfairness that might otherwise arise in such circumstances. 5. It follows that cl 77.1.8 would only have relevance to Sergeant Lamming if he were not already a Transferred Officer. Having found that he was, the clause – and Sergeant Lamming's failure to make application under it – is of no relevance. 6. I note parenthetically that the Commissioner contends that Sergeant Lamming was not a Transferred Officer. On the construction of cl 77.1.8 suggested by Mr Seck, it would necessarily follow that the clause was not available for Sergeant Lamming in any event. This was conceded by Mr Seck during the hearing: Tcpt 23 November 2018, p 39 (28-40). Even on the Commissioner's case nothing could be made of the fact that Sergeant Lamming may not have made an application under cl 77.1.8. Is Sergeant Lamming entitled to reimbursement of stamp duty? 1. The Commissioner contends that the change by Sergeant Lamming to his residence was not "as a consequence of" his transfer from Griffith LAC to Kings Cross LAC for the purposes of cl 90.2 of the Award. It follows, it is submitted, that even if he was a Transferred Officer, he has no entitlement to reimbursement of the stamp duty paid on the purchase of the Zetland property. 2. The outline of submissions filed for the Commissioner stated: "82. The Commissioner submits that the purchase of the Zetland property was not 'as a consequence of the transfer': 82.1 Sgt Lamming was already residing in a residence within the Metropolitan Area such that any later purchase of a new property within that area could not be 'as a consequence of the transfer'; 82.2 Rather, the purchase of the Zetland property arose out of convenience or personal choice. That is, Sgt Lamming, having already moved to a residence that he owned at the new location (within the Metropolitan Area) prior the transfer, subsequently decided that he and Sgt Ward preferred to live closer to their respective workplaces than the Fairy Meadow Property. Such a preference does not make the purchase 'a consequence of' the [sic] Sgt Lamming's transfer." 1. In addition to these submissions, the Commissioner made reference to the following evidence in particular: 1. Sergeants Lamming and Ward were looking for a more "convenient" residence prior to Sergeant Lamming's transfer; and 2. Sergeant Lamming arranged to move his effects to storage at Waterloo. 1. The Commissioner contends that these facts demonstrate that Sergeant Lamming had already decided to move, hence the purchase of the Zetland property was not "a consequence of" the transfer. 2. I would add that the fact that Sergeants Lamming and Ward regarded the accommodation at Fairy Meadow as a temporary arrangement might support the proposition that they were determined to find alternative accommodation in any event. 3. At the hearing, Mr Gibian made the following submissions (Tcpt 23 November 2018, p 17 (48) – p 18 (20)): "The respondent does also make a separate point in relation to clause 90.2 and the reference to 'as a consequence' in clause 90.2. And as you will have seen, Commissioner, clause 90.2 indicates that a transferred officer who, as a consequence of the transfer to a new location, doesn't sell but buys a residence, as I'd apprehended it, the respondent understood the words 'as a consequence' to impose a further test of necessity, that is, that it further had to be necessary for it to be as a consequence. With respect, we think that the way in which these provisions really work is that there is a definition of what a transferred officer is, which has within it that the officer must have found it necessary as a consequence of the assignment to seek a new residence. But the following provisions are really just identifying that there will be reimbursement if, as a consequence, there is a particular cost incurred, and there's various provisions that deal with different types of costs. So that there's not a further test of necessity, it's really a question as to, well, if the person's a transferred officer, they've found it necessary to take up a new residence, and if, in those circumstances, they purchase a residence, because they've already made that, formed that opinion, then that is as a consequence. And here, as I've already taken you to, that is plainly what happened. Sergeant Lamming's evidence is that they made that decision, that it was necessary, and as a consequence, purchased the place in Zetland." 1. On the terms of the clause, an officer is only able to invoke cl 90.2 if he or she is a Transferred Officer. To have satisfied the requirements of the definition in cl 76.7 the officer must not only have had a legitimate basis on which to "seek or take up a new residence", but that this was "as a consequence of [the] assignment". 2. Clauses 89.1, 90.1 and 90.2 of the Award each uses the words "[a] transferred officer who as a consequence of the transfer to a new location…". They each confer entitlements on a Transferred Officer depending on whether he or she sold a former residence and purchased a new one, or purchased a new residence only. 3. In this context, the reference to "consequence" in those clauses is more properly to be directed to a factual question, which will determine which of the clauses will apply and hence what entitlements might flow – namely, having found it necessary to leave his or her existing residence and seek or take up a new residence, what did the officer do: sell their former residence, buy a new residence or both? I do not consider that the words "as a consequence" in cl 90.2 impose a further, objective threshold to be met – namely, that the transfer must have necessitated the purchase of the new property. 4. On the Commissioner's submissions regarding Sergeant Lamming moving on the basis of convenience as opposed to necessity, I repeat [82] to [85] above. 5. The spousal transfer form referred to at [84] above is inconsistent with Sergeant Lamming having made a definite decision to reside somewhere other than Fairy Meadow until his transfer to the Kings Cross LAC was confirmed. The arrangements he made to store his effects at Waterloo were made after he was aware that he was to be transferred to the Kings Cross LAC. 6. On balance, I am satisfied that Sergeant Lamming found it necessary to move "as a consequence of" his assignment to Kings Cross LAC. 7. I acknowledge the Commissioner's submissions regarding the need to "tightly control the spending of public funds". This objective is met in the relatively stringent definition of "Transferred Officer" and the limited discretion conferred on the Commissioner by cl 77.8.1 to extend the benefits of Section 7 of the Award to other officers. Findings 1. I find that: 1. Sergeant Lamming was a Transferred Officer as defined in cl 76.7 of the Award. 2. Sergeant Lamming is entitled to reimbursement of stamp duty paid in respect of the purchase on 27 June 2017 of the residence at Zetland, in accordance with cl 90.2.2 of the Award. Recommendation 1. Sergeant Lamming completed the purchase of the Zetland property on 27 June 2017, and paid stamp duty on the purchase of $27,865. On that day (as he had done previously), he made representations to the Commissioner through the Association regarding his entitlements under Section 7 of the Award. The Commissioner should at that time have reimbursed Sergeant Lamming the stamp duty he had paid. Instead, it refused to do so. 2. In the circumstances, it would seem appropriate that the Commissioner pay interest on the outstanding amount. 3. In light of my findings and having regard to all of the circumstances, I recommend that the Commissioner make payment to Sergeant Lamming in reimbursement of the stamp duty paid by him in respect of the purchase of the Zetland property, plus interest. Orders 1. I make the following orders: 1. The parties are to confer with a view to agreeing on the amount to be paid by the Commissioner to Sergeant Lamming and the time within which such payment is to be made. 2. The matter is adjourned to 22 February 2019. 3. Liberty is reserved to the parties to have the matter re-listed on reasonable notice. 4. If that liberty is not exercised by 22 February 2019 the matter will be closed administratively. Damian Sloan Commissioner ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 January 2019