Western Australian Industrial Relations Commission

Leave to attend and give evidence at an appeal before the PSAB

 

The Industrial Magistrate's Court has dismissed a claim made by a senior youth justice officer for the paid leave to attend union business in accordance with clause 37 of the Public Service Award 1992 (Award). Mr   Mayerhofer attended two directions hearings and a hearing of the appeal before the Public Sector Appeal Board (PSAB).

Industrial Magistrate Scaddan found that the appeal was instituted by Mr Mayerhofer personally on matters personal to him, rather than by the Civil Service Association of Western Australia as an organisation on behalf of one of its members.

Scaddan IM noted that to qualify for paid leave to attend union business, within the meaning of cl 37, it was needed to be an industrial, commercial, or professional operation or commercial activity or dealings.  Scaddan IM found that as the character of the appeal was a matter personal to Mr Mayerhofer, and that although Mr Mayerhofer was represented by the applicant, it could not be said to be union business within the  definition of cl 37.

 Scaddan IM considered the language and context of the subclauses to cl 37(1) and found that the intention of cl 37(1)(a) is not to provide a separate type of paid leave for individual officers to attend litigation unrelated to the commercial activities and professional operation of the union. Scaddan IM concluded that the applicant had not proved to the requisite standard that the respondent contravened cl 37.

Scaddan IM considered the applicant's allegation that Mr Mayerhofer was required to attend the appeal for six days and found that the evidence indicated that this claim had been inflated. Lastly, in relation to a contention raised by the parties, Scaddan IM observed that the drafters of the Award could not have intended for a clause to operate preferentially to union members.

Scaddan IM dismissed the applicant's claim and associated claim for a penalty.

The decision can be read here.

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