2023 WAIRC 00936
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2023 WAIRC 00936

CORAM : INDUSTRIAL MAGISTRATE B. COLEMAN

HEARD : THURSDAY, 8 JUNE 2023

DELIVERED : THURSDAY, 30 NOVEMBER 2023

FILE NO. : M 102 OF 2022, M 103 OF 2022

BETWEEN : WESTERN AUSTRALIAN POLICE UNION OF WORKERS
CLAIMANT

AND

COMMISSIONER OF POLICE, WESTERN AUSTRALIA POLICE FORCE
RESPONDENT

Catchwords : Travel concession entitlement; Request for reimbursement of annual leave and travel concession; Employer refusal of employee request; Interpretation of Industrial Agreement.
Legislation : Industrial Relations Act 1979 (WA)
Long Service Leave Act 1958 (WA)
Instrument : Western Australia Police Force Industrial Agreement 2021
Case(s) referred
to in reasons: : Kucks v CSR Ltd (1996) 66 IR 182
Re Harrison; Ex parte Hames [2015] WASC 247
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638
Fedec v Minister for Corrective Services (2017) 97 WAIG 1595
Civil Service Association of Western Australia Incorporated v Commissioner, Western Australia Police Department [2019] WAIRC 00142
Result : Claims dismissed
Representation:
Claimant : Mr S. Farrell (agent) as instructed by the Western Australian Police Union of Workers
Respondent : Mr J. Carroll (of counsel) as instructed by the State Solicitor’s Office

REASONS FOR DECISION
1 After having had their request for travel allowance rejected by the employer, the employees argued that they were entitled to the allowance on a calendar year basis. The employees’ interpretation of the relevant clauses of the agreement was incorrect.
2 Jasmine and Joseph Carlin are serving Western Australian police officers who were once based in Kununurra. They took a trip to Perth in March 2022. Upon their return, they sought to claim the Annual Leave Travel Concession (the travel concession), which was rejected by the employer.
3 The Carlins claim that the rejection of the travel concession is a breach of cl 30(9) of the Western Australia Police Force Industrial Agreement 2021 (the Agreement), which in turn is a contravention of s 83(1)(c) of the Industrial Relations Act 1979 (WA) (the Act).
4 Their union seek relief in the form of:
a) Payment to each of the Carlins of $1599 in Motor Vehicle Allowance (plus pre-judgment interest);
b) Reimbursement of 28 hours of annual leave taken by Jasmine Carlin; By way of the agreed facts and in written submissions, the union has adjusted the claims related to the reimbursement of annual leave to reflect the travel time of 3.5 days (or 28 hours): one day (made up of 8 hours) for the flight from Kununurra to Perth and 2.5 days (being a total of 20 hours) for the time that it took the Carlins to drive from Perth to Kununurra prior to the conclusion of their annual leave on 1 April 2022.

c) Reimbursement of 28 hours of annual leave taken by Joseph Carlin; The amended statement of claim sought the reimbursement of five days of annual leave for Joseph Carlin, allowing for 2.5 days travel time each way, though it is noted that in fact, Mr Carlin took both TOIL and annual leave for the period 8 March 2022 to 1 April 2022 and therefore the relief sought should have been for the reimbursement of 8 hours’ TOIL and 20 hours’ annual leave.

d) A declaration that the employer has breached cl 30(9) of the Agreement; and
e) Payment of a pecuniary penalty.
What are the Issues?
5 The issues to be decided in this claim are as follows:
a) Were the Carlins entitled to the travel concession?
b) Has the employer breached cl 30(9) of the Agreement?
Were the Carlins Entitled to the Travel Concession?
6 The Carlins were stationed in Kununurra from 28 June 2018 to 17 July 2022. It is not in dispute that Kununurra is classified as a remote area under the Agreement and is north of 20 degrees South Latitude. Kununurra is located within Area 6 of Schedule C (Annual Leave Travel Concession Boundaries) and is therefore classified as a remote area pursuant to cl 30(9)(a)(i) of the Agreement.

7 Jasmine Carlin claimed and was paid the travel concession for annual leave taken:
a) 4 February 2019 to 10 February 2019;
b) 25 January 2021 to 31 January 2021; and
c) 23 August 2021 to 29 August 2021.
8 Joseph Carlin claimed and was paid the travel concession for annual leave taken:
a) 4 February 2019 to 10 February 2019;
b) 25 January 2021 to 29 January 2021; and
c) 9 August 2021 to 13 August 2021.
9 In 2022, Joseph Carlin took time in lieu (TOIL) from 8 March to 11 March, then annual leave from 14 March to 1 April. Jasmine Carlin took annual leave from 7 March to 1 April. During this time, the Carlins flew to Perth and ultimately drove back to Kununurra: they did not have the prior approval of the employer to return to Kununurra by motor vehicle.
10 In May 2022, Joseph Carlin made a written request to his Inspector requesting that the week of 28 March to 1 April 2022 be changed from annual leave days to travel days and recredited. Subsequently, Jasmine Carlin also sought that her annual leave days be changed to travel days and recredited. After several months of correspondence between the parties, their requests were ultimately rejected by the employer.
11 The Carlins were transferred from Kununurra to Perth on 17 July 2022.
The Agreement
12 The Carlins’ entitlement to the travel concession depends upon the interpretation of cl 30(9) of the Agreement.
13 If the travel concession in cl 30(9):
a) accrues on an annual basis each year calculated by the commencement of their service, then they are not entitled to the concession; or
b) accrues on a calendar year basis and can be utilised at any time during a subsequent year’s service then they are entitled to the concession.
14 As a corollary, even if the Agreement is interpreted in favour of the Carlins, the employer argues that there is no ability for an employee to have annual leave or TOIL reimbursed when used as travel time.
15 The principles for interpreting industrial agreements are well settled. The task involves different considerations when compared to the interpretation of legislation. The objective intention of the parties must be determined by considering the text of the instrument, which begins by considering the ordinary meaning of its words. However, a literal or pedantic interpretation should be avoided where that would produce a result that is inconsistent with the apparent intention of those that drafted it. Regard must be had to the context and purpose of the provision being construed, bearing in mind that the drafters were likely focused on practicality and the relevant industrial relations environment. Context may appear from the text of the whole instrument, its arrangement, and/or the position of the provision within the instrument. If the plain meaning is clear, the Court will have no need to refer to extrinsic materials. Kucks v CSR Ltd (1996) 66 IR 182 at 184 per Madgwick J; Re Harrison; Ex parte Hames [2015] WASC 247 at [50] - [51] per Beech J; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638 at [53]; Fedec v The Minister for Corrective Services (2017) 97 WAIG 1595 at [21] - [23]; Civil Service Association of Western Australia Incorporated v Commissioner, Western Australia Police Department [2019] WAIRC 00142 at [10]  [11] per Kenner SC.

16 The travel concession is contained within cl 30 of the Agreement, which relates to annual leave. The intention of cl 30 is to set out the annual leave entitlements for employees and the way such leave can be utilised. As part of the clause, extra leave entitlements and allowances are provided to employees that work in remote and special areas. One such allowance is the travel allowance.
17 It is important to read cl 30 as a whole to determine which sections of the clause are relevant to the interpretation of sub-clause (9).
18 Clause 30(1)(ii) grants each employee 240 hours of annual leave for each year of service, along with a further 40 hours’ annual leave to employees stationed in the Northwest for every year of service in that location. The annual leave is calculated on a calendar year basis commencing January 1, however, this does not mean that an employee that has worked less than the calendar year shall receive the full entitlement, since cl 18 of the agreement allows for pro rata payments where an employee has not qualified for a complete year.
19 Clause 30(1)(b) allows for an employee to take annual leave in more than one period with the consent of the employer.
20 Clause 30(1)(c) confirms that the travelling time related to the travel allowance can only apply to one period of annual leave per annum: in other words, where an employee in a remote area takes more than one period of annual leave, the employee is only entitled to claim the allowance once a year.
21 Clause 30(2) requires an employee to provide their proposed annual leave dates to the employer by 30 June each year.
22 Clause 30(3)(a) requires the employee to take their annual leave in accordance with the roster applicable in that year, however, cl 30(3)(b) allows the employer to alter the proposed dates.
23 The relevant sub-clauses of cl 30(9) state:
(9) Annual Leave Travel Concessions
(a) Employees Stationed in Remote Areas:
(i) The travel concessions contained at subclause (9)(a)(viii) are provided to an Employee, and their Dependant(s), when proceeding on Annual Leave to either Perth, Geraldton or other place outside of the Employee’s district which is approved by the Employer, from Headquarters situated in the Annual Leave Travel Concession Areas 3, 5 and 6, and in that portion of Area 4 located north of 30 degrees South Latitude as provided by Schedule C - Annual Leave Travel Concession Boundaries.
(ii) Employees are required to serve a year in these areas before qualifying for travel concessions. However, Employees who have less than a years’ service in these areas and who are required to proceed on Annual Leave to suit the Employers convenience or who are unable to complete the required twelve months service in the Special Area due to causes beyond the Employee’s control will be allowed the concessions. The concession may also be given to an Employee who proceeds on Annual Leave before completing the years’ service provided that the Employee returns to the area to complete the years’ service at the expiration of the period of leave [Emphasis added].
(iii) The mode of travel is to be at the discretion of the Employer.
(iv) Provided the travel concession does not exceed the value of the fully refundable return economy airfare from his or her Headquarters to Perth an Employee may elect to use the concession to purchase return economy airfare or equivalent Motor Vehicle Allowance to any destination of his or her choice. Should the cost of the chosen return economy airfare be less than the value of the fully refundable return economy airfare to Perth, the lesser amount shall be paid. Accommodation costs of any travel package arrangement will not be paid as part of this concession.
(v) Travel concessions not utilised within 12 months of becoming due will lapse.
(vi) …
(vii) …
(viii)
Approved Mode of Travel
Travel Concession
Travelling Time
(aa) Air
Fully refundable return economy airfare for the Employee and Defendant(s).
One day each way.
(bb) Road
Full Motor Vehicle Allowance rates, but reimbursement not to exceed the cost of fully refundable return economy airfare.
North of 20 degrees South Latitude – two and one half days each way. Remainder – two days each way.
(cc) Air and Road
Full Motor Vehicle Allowance rates for car trip, but reimbursement not to exceed the cost of the fully refundable return economy airfare for the Employee and Dependent(s) (sic)
North of 20 degrees South Latitude – two and one half days each way. Remainder – two days each way
24 The Carlins each completed four years of service in Kununurra. They were paid the travel allowance three times and argue that they are entitled to a fourth payment of the allowance.
25 Jasmine Carlin’s leave and allowance with reference to the calendar year is easily reviewed by reference to the following table:
Calendar Year
Service Period in Kununurra
Relevant Leave Taken
Allowance paid
2018
28/06/2018 to 27/06/2019
Nil
No
2019
28/06/2019 to 27/06/2020
04/02/2019 to 10/02/2019
Yes (in advance)
2020
28/06/2020 to 27/06/2021
Nil
No
2021
28/06/2021 to 27/06/2022
25/01/2021 to 31/01/2021
23/08/2021 to 29/08/2021
Yes
Yes
2022
28/06/2022 to 27/06/2023
07/03/2022 to 01/04/2022
No
26 Joseph Carlin’s leave and allowance with reference to the calendar year is easily reviewed by reference to the following table:
Calendar Year
Service Period in Kununurra
Relevant Leave Taken
Allowance paid
2018
28/06/2018 to 27/06/2019
Nil
No
2019
28/06/2019 to 27/06/2020
04/02/2019 to 10/02/2019
Yes (in advance)
2020
28/06/2020 to 27/06/2021
Nil
No
2021
28/06/2021 to 27/06/2022
25/01/2021 to 29/01/2021
09/08/2021 to 13/08/2021
Yes
Yes
2022
28/06/2022 to 27/06/2023
14/03/2022 to 01/04/2022
No
27 As can be seen from each table, the Carlins took annual leave in the year 2019 for which they were each paid the travel allowance. The allowance was paid in advance in accordance with cl 30(9)(a)(ii), since the Carlins had not yet completed a full year of service at Kununurra when they took leave in February 2019.
28 The Carlins did not take any annual leave in 2020, however, they took two periods of leave in 2021 for which they each received the travel allowance.
29 The Carlins took leave in 2022 and were not paid the allowance: the 2022 leave is the subject of the dispute.
30 The union argues that the words in cl 30(1)(a)(ii):
Annual leave shall be calculated on a calendar year basis commencing January 1 in each year [Emphasis added]
and the words in 30(1)(c):
…the travelling time allowed under subclause (9) of this clause shall only apply to one period of annual leave per annum [Emphasis added]
give rise to an interpretation that requires the travel allowance to also be calculated on a calendar year basis.
31 However, such an interpretation ignores the remainder of the relevant subclauses in cl 30 and would mean, on the union’s own interpretation, that the Carlins were paid travel allowance twice in 2021 in error, since cl 30(1)(c) only allows for the payment of the allowance once per year.
32 For reasons not identified within the body of the instrument (and not relevant to the interpretation of the clause), the employer requires annual leave to be calculated on a calendar year basis from January 1 every year. Thereafter, operationally, the scheduling and the utilisation of such annual leave is calculated by reference to the financial year.
33 It is clear from reviewing the entirety of the Agreement that there must be operational or budgetary reasons why this is so. By way of example, the Agreement itself commenced on 30 June 2021, Clause 4(1) of the Agreement.
yet the employer paid the increased salary and allowances provided for in the Agreement from 1 July 2021. Clause 4(2) of the Agreement.

34 A closer examination of the definition section reveals a further reference to ‘year’ in cl 6(29):
(29) Motor Vehicle Allowances The following expressions shall have the following meaning in respect to Motor Vehicle Allowances:
(a) A Year means twelve months commencing on the 1st day of July and ending on the 30th day of June next following.
35 References to the financial year are made throughout the entirety of the Agreement relating to the calculation of salaries and various allowances, including shift allowance, seagoing allowance, OIC mounted allowance, pipe band allowance, investigative skills allowance and defence force reserves paid leave. See for example clauses 10(1)(g), 10(1)(h), 10(1)(p), 15(2), 16(1), 17(1)(b), 17(13(c)(i), 17(13)(c)(iii) and 52(4)(d) of the Agreement.

36 There are only three allowances calculated by reference to calendar year:
a) The civilian clothing allowance Clause 17(8) of the Agreement.
and the pregnancy clothing allowance Clause 17(9) of the Agreement.
are each paid as a lump sum payment in advance. Each of these payments require the prior approval of the employer;
b) The covert allowance Clause 17(17) of the Agreement.
is calculated by reference to the amount of annual leave that the employee has accrued. Since annual leave is accrued on a calendar year basis, it follows then that the covert allowance is required to be calculated by reference to the calendar year.
37 Throughout the Agreement, reference is made to the words ‘calendar year’ in clauses related to particular types of leave, including illness or injury leave, carer leave and cultural leave. See Clauses 36, 37 and 42 of the Agreement.
The clause relating to family and domestic violence leave refers to the word ‘year’ but does not specify whether the leave is calculated by reference to the calendar year, the service period or the financial year. Clause 38 of the Agreement.

38 Having carefully reviewed the entirety of the Agreement, references to the calendar year overwhelmingly relate to the accumulation of periods of leave rather than allowances (other than long service leave, which accumulates on years of service in accordance with the provisions of the Long Service Leave Act 1958 (WA)). See cl 32 of the Agreement and the Long Service Leave Act.

39 Further, cl 18 specifically deals with situations where an allowance is expressed as an annual rate:
(18) Pro Rata Payments of Allowances
(1) Wherever in this Agreement an allowance is expressed as an annual rate, pro rata payment only shall be allowed if an Employee does not qualify for a complete year.
(2) For the purpose of ascertaining a fortnightly or daily rate of an annual allowance the formula prescribed in subclause (13) of clause 10 – Salaries shall apply. [Emphasis added]
40 Returning then to the consideration of cl 30(9) and the manner in which the drafting parties intended that it operate practically, its purpose is to financially compensate remote employees when they travel on annual leave from their workplace to any place outside their district that the employer approves.
41 Remote employees are financially compensated in one of three ways for such travel, Clause 30(9)(a)(viii) of the Agreement.
however, subclause (9)(a)(iii) states that the mode of travel is at the discretion of the employer. In other words, the employee must inform the employer in advance of travel that they seek to claim the travel allowance for their trip, to ensure that the employer approves the allowance and destination pursuant to subclause (9)(a)(i) and considers which mode of travel best suits the operational or budgetary needs of the district.
42 The clause allows for some flexibility in favour of the employee in subclause (9)(a)(iv), since the employee has the option to choose to travel to any destination of their choice, provided that the travel concession does not exceed the cost of a fully refundable airfare from the employee’s headquarters to Perth. If the actual cost is less, then the lesser amount is payable. However, the mode of travel still remains at the discretion of the employer: circumstances may arise in which the employer is required to refuse travel by road because the travel time of two and a half days each way cannot be accommodated in the operational roster for that particular remote workplace.
43 A plain reading of the subclause therefore establishes that prior approval for the proposed travel allowance must be granted before the employee takes their annual leave, but that then begs the question: when does the entitlement arise?
44 The Carlins argue that subclause (9)(a)(ii) only relates to the first year of service in a remote area. Their interpretation is incorrect.
45 Subclause (9)(a)(ii) allows for four ways in which an employee may claim the entitlement:
i. The first way is if the employee serves a year in the remote area (i.e. a year of service from the date the employee commenced working in the remote area);
ii. The second way is if the employer requires the employee to take annual leave prior to the completion of their first year of service due to operational reasons. Note that this portion of the subsection is the only portion that uses the words ‘the first year’, yet further examples follow;
iii. The third way is if the employee is unable to complete the required 12 months service due to causes beyond their control (for example, the employee is directed to return to Perth for operational reasons); and
iv. The fourth way is if the employee takes leave before completing the years’ service, provided that the employee returns to the remote area to complete the years’ service after their leave.
46 In the first three examples, the subclause clearly states that the employee will be entitled to the concession.
47 In the final example, the subclause allows for the payment of the concession at the discretion of the employer: the concession may be given to the employer if the employee undertakes to return to complete the years’ service.
48 Subclause (9)(a)(i) accrues on an annual basis each year, calculated by reference to the commencement of the employee’s service in the remote area.
49 Why? On every example contained within subclause 9(a)(i), reference is made to a years’ service. Had the intention of the parties been to calculate the travel allowance by the calendar year, then reference would have been made to the ‘calendar year’.
50 Such an interpretation is further strengthened by reference to subclause 9(a)(v): travel concessions not used within 12 months of becoming due will lapse. If the intention of the parties was to calculate the travel allowance by calendar year, then the words ‘of becoming due’ would be rendered redundant.
51 Further, it follows that if it was the intention of the parties that the travel allowance accrue on a calendar year basis, then by reference to cl 18, the allowance would be paid on a pro rata basis and there would no requirement to set out different situations in which the allowance may be approved. The only reference to pro rata payments of the travel allowance is contained within the subclause relating to part-time employees at cl 30(9)(a)(vii) of the Agreement.

52 Reviewing the two tables above by reference to the service period:
a) the Carlins were paid the travel allowance in advance by the employer for their first period of leave, since their entitlement did not in fact accrue until 27 June 2019;
b) the Carlins’ next travel allowance entitlement accrued on 27 June 2020, and they utilised this entitlement in January 2021;
c) their next travel allowance entitlement accrued on 27 June 2021, and they utilised this entitlement in August 2021.
d) The Carlins’ final travel allowance entitlement accrued on 27 June 2022.
53 The only manner in which the Carlins could access their final travel allowance entitlement was to seek the prior approval of the employer before commencing their leave, since they sought to travel in March/April 2022, prior to the actual accrual date of 27 June 2022.
54 The Carlins claim that the rejection of the travel concession is a breach of cl 30(9) of the agreement: they are wrong.
55 The Carlins were required to obtain the approval of their employer for the travel allowance on every occasion that they sought to claim it, but most definitely for the March/April 2022 period of annual leave, since that leave was intended to be taken prior to the accrual of their final travel allowance entitlement.
56 The employer retained a discretion at subclause 9(a)(ii) to allow the payment of the allowance in advance: had the Carlins sought that approval prior to commencing leave, it is likely that it would have been granted.
57 Unfortunately, at the time that they took their annual leave in March/April 2022, it appears that the Carlins were not entitled to the allowance because they were due to relocate, therefore they would not have thought to make the request. However, the correspondence reveals that their tenure in the district was extended and that therefore, they became eligible for the travel allowance once they remained in the remote area past 27 June 2022. See for example the email dated 30 May 2023 from Joseph Carlin to the District Inspector at Appendix 1.

58 It is regrettable that the Agreement in its current form does not allow for the retrospective payment of the travel allowance (nor the reimbursement of annual leave taken as travel days) in circumstances where an employee’s tenure in a remote area is subsequently extended.
59 The Carlins having failed to establish the claim, it is therefore not necessary to consider whether there is any ability for an employee to have annual leave or TOIL reimbursed when used as travel time, though it is noted that had the Carlins sought and obtained the necessary approval in advance, the hours would not have been deducted.
Result
60 Upon the correct interpretation of cl 30(9) of the Agreement, the Carlins were not entitled to the travel concession for their trip in March/April 2022 unless they sought and were granted the prior approval of the employer. They did not do so.
61 The employer has therefore not breached cl 30(9) of the Agreement, nor contravened s 83(1)(c) of the Act.
62 The claims are dismissed.

B. COLEMAN
INDUSTRIAL MAGISTRATE