INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA

CITATION : 2024 WAIRC 00116

CORAM : INDUSTRIAL MAGISTRATE R. COSENTINO

HEARD : WEDNESDAY, 7 FEBRUARY 2024

DELIVERED : WEDNESDAY, 20 MARCH 2024

FILE NO. : M 61 OF 2023

BETWEEN : WESTERN AUSTRALIAN PRISON OFFICERS' UNION OF WORKERS

CLAIMANT

AND

Minister for Corrective Services

RESPONDENT

CatchWords : INDUSTRIAL LAW – alleged contravention of industrial agreement – Department of Justice Prison Officers Industrial Agreement 2020 – entitlement to paid travelling time – meaning of ‘paid travelling time’ – interaction of paid travelling time and compensable incapacity – whether paid travelling time is an allowance – whether paid travelling time is an entitlement to additional pay – no entitlement to paid travelling time when otherwise not required to attend work – industrial agreement not contravened – claim dismissed

Legislation : Industrial Relations Act 1979 (WA)

Workers Compensation and Injury Management Act 1981 (WA)

Fair Work Act 2009 (Cth)

Instrument : Department of Justice Prison Officers' Industrial Agreement 2020

Case(s) referred

to in reasons: : Amalgamated Engineering Union & Ors v W. Allenby and Co Pty Ltd & Ors (1945) 55 CAR 595

Re Harrison; Ex parte Hames [2015] WASC 247

Fedec v The Minister for Corrective Services [2017] WAIRC 00828

WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536

Touhey v Sanini Australia Pty Ltd [2022] FCA 55

Result :  Claim dismissed

Representation:

Claimant : Mr D. Stojanoski (of counsel) as instructed by the Western Australian Prison Officers' Union of Workers

Respondent : Ms S. Power (of counsel) as instructed by the State Solicitor's Office

REASONS FOR DECISION

1         The  claimant’s member, Mr Geoffrey Rossiter, is employed by the respondent as a Prison Officer. At relevant times, he was headquartered at Broome Regional Prison.

2         In September and October 2021, the Department of Justice Prison Officers Industrial Agreement 2020, (the Agreement) an industrial agreement made under s 41 of the Industrial Relations Act 1979 (WA) (IR Act), applied to Mr Rossiter’s employment.

3         In accordance with the annual leave provisions of the Agreement, the respondent issued a leave letter to Mr Rossiter, rostering him to take annual leave in September and October 2021. Mr Rossiter took his leave in accordance with the leave letter. But at the time he took leave, he was already on an authorised absence from work. Specifically, he was incapacitated and in receipt of weekly payments of compensation under the Workers’ Compensation and Injury Management Act 1981 (WA) (WCIM Act).

4         Clause 85 of the Agreement entitles an officer who is headquartered in the North West, and who proceeds on annual leave to a destination outside that region, to ‘paid travelling time’.

5         The claimant alleges that the respondent contravened clause 85 of the Agreement by failing to pay Mr Rossiter an amount in addition to his weekly payments of compensation as paid travelling time. The respondent denies any contravention of the Agreement.

6         The matter was listed for hearing to determine only whether there had been a contravention of the Agreement, with any remedy and consequential orders to be decided at a later date if I find there was a contravention. Therefore, at this stage, the first and primary issue I must decide is, as a matter of construction, what is the nature of the entitlement under clause 85.1? What does clause 85.1 do? Is it an entitlement to be allowed paid time off, or is it an entitlement to be compensated for travel in an officer’s own time?

7         If the entitlement in clause 85.1 is an entitlement to be allowed time off, that is, time away from usual duties, then the claimant’s claim fails, because Mr Rossiter was already authorised to be away from his usual duties, so clause 85.1 could not apply to him. However, if I accept that clause 85.1 is to compensate an officer for using their own time for travelling, then I must also decide:

(a) As a matter of construction, what payment does ‘paid travelling time’ require?

(b) As a matter of construction, is a ‘day’ of travel equivalent to eight hours or the hours in a rostered shift?

(c) As a matter of fact, did Mr Rossiter receive the benefit of the entitlement in clause 85, as properly construed?

8         The current dispute arises in uncommon circumstances. Ordinarily an employee would not take annual leave during a period when they are otherwise entitled to be absent from work due to illness or injury, and in receipt of weekly payments of compensation. After all, the purpose of annual leave is to provide a period of rest, or respite from work, without loss of income: Amalgamated Engineering Union & Ors v W. Allenby and Co Pty Ltd & Ors (1945) 55 CAR 595 at 597.

9         However, the Agreement contains a scheme which requires prison officers to take annual leave in accordance with a leave roster that applies to all officers for each year. An officer’s position on the leave roster is confirmed in writing in an annual leave letter when the officer commences at a prison. There is limited ability for officers to take annual leave at times that are not set out in the leave roster.

Jurisdiction

10      Under s 83 of the IR Act, a person who is a party to an industrial agreement is able to apply to the Industrial Magistrates Court (IMC) for enforcement of any provision of the industrial agreement.

11      The Agreement is an industrial agreement to which s 83 of the IR Act applies.

12      The claimant is a party to the Agreement and, therefore, is a person entitled to apply to the IMC for enforcement of it.

13      If a contravention is proved, the IMC may issue a caution or impose a pecuniary penalty: s 83(4).

14      In proceedings brought under s 83(1), if it appears to the IMC that an employee has not been paid an amount to which the employee was entitled to be paid under an entitlement provision, the IMC must order the respondent to pay the amount by which the employee has been underpaid.

15      The parties agreed that if a contravention is proved at this hearing, the IMC should reconvene to determine what orders should be made under s 83 and s 83A.

16      The hearing as to whether a contravention was proved proceeded on the basis of uncontentious facts, set out in a short Agreed Statement of Facts and three agreed documents. Neither party led any other evidence.

Construction principles

17      The principles that apply to construction of industrial instruments are well settled. They were summarised by Beech J in Re Harrison; Ex parte Hames [2015] WASC 247 at [50] and by Smith AP in Fedec v The Minister for Corrective Services [2017] WAIRC 00828 at [21] ‑ [23]:

(1) the primary duty of the court in construing an instrument is to endeavour to discover the intention of the parties as embodied in the words they have used in the instrument;

(2) it is the objectively ascertained intention of the parties, as it is expressed in the instrument, that matters; not the parties' subjective intentions. The meaning of the terms of an instrument is to be determined by what a reasonable person would have understood the terms to mean;

(3) the objectively ascertained purpose and objective of the transaction that is the subject of a commercial instrument may be taken into account in construing that instrument. This may invite attention to the genesis of the transaction, its background and context;

(4) the apparent purpose or object of the relevant transaction can be inferred from the express and implied terms of the instrument, and from any admissible evidence of surrounding circumstances;

(5) an instrument should be construed so as to avoid it making commercial nonsense or giving rise to commercial inconvenience. However, it must be borne in mind that business common sense may be a topic on which minds may differ; and

(6) an instrument should be construed as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed so as to have some operation.

18      Where the particular kind of instrument being construed is an industrial agreement:

The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378 (French J). The interpretation “... turns on the language of the particular agreement, understood in the light of its industrial context and purpose ...”: Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378‑9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a ‘practical bent of mind’ and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited [1996] IRCA 166; (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).

WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 at [197]

What does clause 85.1 do?

19      Clause 85 says:

85.1 An Officer, other than an Officer who is engaged on a casual basis, whose Headquarters is located above the 26 degrees south latitude and who proceeds on annual leave to a destination outside the geographical region of their Headquarters shall be entitled to paid travelling time in accordance with the mode of travel chosen by the Employer as follows:

85.2 An Officer, other than an Officer who is engaged on a casual basis, whose Headquarters is not located above 26 degrees south latitude but whose Headquarters is 240 km or more from the Perth Train Station and who travels to Perth for their annual leave will be entitled to up to one rostered shift of travelling time. This entitlement will apply where the Officer is rostered to work as part of the Officer's ordinary hours of work on a shift the date immediately prior to the commencement of annual leave or the date immediately after the completion of annual leave. An Officer will not be granted travelling time if the Officer has swapped into the shift.

85.3 An Officer is only entitled to be paid travelling time once per Leave Year unless the Officer is rostered by their Annual Leave Letter to take annual leave twice in that Leave Year. An Officer who makes a request under subclause 80.5 and is subsequently rostered to take annual leave twice in the same Leave Year will not be entitled to the additional travelling time provided by this clause.

85.4 Travelling time, which is not taken in full when the Officer proceeds on annual leave in accordance with the Officer’s leave roster, shall not accrue.

20      In oral submissions, the claimant faintly characterised the clause 85.1 entitlement as an ‘allowance.’

21      If it is an allowance, clause 34.4 of the Agreement is a complete defence to the claim. Clause 34.4 says that, except as set out in that clause, ‘no allowance shall be paid while an officer is absent from work whether on leave or otherwise’. None of the exceptions apply in this case.

22      The entitlement under clause 85.1 is not an allowance.

23      The claimant also characterised the clause 85.1 entitlement as a form of compensation to an employee for the time they spend travelling. The claimant’s counsel submitted that the purpose of the clause is:

to compensate for a remote officer’s travelling time during annual leave…

24      For this to be so, the time travelling must be the officer’s own time - time when the employee would not otherwise be working, such as annual leave, rostered days off, or hours outside of rostered shifts. There is, of course, no need to compensate for time spent which is otherwise work time.

25      The claimant’s case was changeable in this regard, though. At one point during the hearing, the claimant’s counsel explained that:

an officer that's in a remote location, under clause 85.1, he takes annual leave. He gets paid for that annual leave. Then he gets paid on top of that annual leave for the travel time allowance….

… So Mr Rossiter is a shift worker and when he's not on shift and he travels, he gets paid that travelling time allowance….[clause 85.1] compensates a person for lost annual leave time, I suspect. It compensates a person for lost annual leave time when you’re travelling during annual leave.

26      After a brief adjournment of the hearing, the claimant’s counsel provided a different explanation. After first confirming that the travel time under clause 85.1 was taken in an officer’s rostered days off, counsel then said:

The explanation that I received was you were given the annual leave – so someone that's captured by 85.1, you were given the annual leave. So you go on annual leave. You proceed on annual leave. And then you were given plus five days at the end of the annual leave. So you don't get the 2.5 at the start and the 2.5 at the end. You're given five days at the end of the annual leave. So if your annual leave starts on, say, for example, the 10th of a month, you don't get the 9th off to drive.

27      This is inconsistent with the earlier suggestion that the travel time was taken in the officer’s own time. This explanation accords with the respondent’s case that the travelling time is allowed by the employer from time that the officer would otherwise be required to attend work.

28      The claimant’s position reverted once again in its written submissions filed after the hearing, where it said:

The correct construction of clause 85.1 (when considered with clause 85.2) is that an officer caught by clause 85.1 was not rostered on duty for that period of travel when commencing annual leave and therefore that officer receives an additional day of pay, in Mr Rossiter’s case - five days of additional pay. (original emphasis)

and

[A]n officer receives the entitlement on a day off on a day which they would otherwise not receive payment.

29      The claimant did not address in its written submissions why this was the correct construction of clause 85.1. Nor did it make any submissions during the hearing in support of its construction other than to agree with my observation that clause 85.1, in contrast to clause 85.2, did not expressly stipulate that a person need be rostered to work on a shift immediately prior to or immediately after the completion of annual leave.

30      The respondent, on the other hand, says the travel time is time when usual duties would otherwise be performed. The entitlement is to be allowed time away from usual duties without loss of pay. It is not a form of compensation, but a protection from financial disadvantage.

31      In my view, clause 85.1 is an entitlement to time off without loss of pay for the purpose of travelling. There are several reasons for my conclusion.

32      First, clause 85 only applies to officers who are headquartered in regional areas. Therefore, the apparent purpose of the entitlement the clause contains is to ensure that regionally located officers can enjoy their full period of annual leave without it being consumed by travelling from the regional location to another destination. It is designed to preserve the officer’s own time.

33      Second, there is nothing in the words used in the clause which point to an intention that the entitlement compensate an officer for using their own time to travel.

34      Third, it would be nonsensical to entitle an officer to travelling time in their own time. If the clause contemplated an officer travelling in their own time, there would be no need to refer to ‘entitled’ and ‘time’ at all. The officer is free to travel. The clause need only entitle them to a payment ‘for’ their travel.

35      Fourth, clause 85.1 refers to the travelling time being determined ‘in accordance with the mode of travel chosen by the Employer.’ That the employer can choose the mode of travel indicates an objective intention that the amount of time allowed for travelling be determined by the Employer. This is inconsistent with the concept of travel being undertaken in an employee’s own time.

36      Fifth, the second column of the table in clause 85.1 is headed ‘Travelling Time’. The emphasis is on time. This indicates the core entitlement is time and how time is used.

37      Sixth, clause 85.4 says that ‘travelling time, which is not taken in full when the Officer proceeds on annual leave in accordance with the Officer’s leave roster, shall not accrue.’ This limitation cannot sensibly be applied if the travelling time is the officer’s own time and the entitlement is merely to a payment.

38      Finally, clause 85.2 refers to travelling time being ‘granted.’ Again, this is consistent with the time otherwise being time which the employee is required to be providing service to the employer rather than the employee’s own time.

39      Accordingly, I reject the claimant’s submission that clause 85.1 is an entitlement to additional pay or pay as compensation for an officer using their own time for travel. The entitlement in clause 85.1 is an entitlement to be allowed an amount of time off work or away from usual duties without loss of pay.

What payment does ‘paid travelling time’ require?

40      The claimant argued that the payment for travelling time is an ‘additional’ payment over and above the salary an officer would ordinarily receive for the relevant period. This contention was based on the idea that the clause 85.1 entitlement is compensation for using the officer’s own time. Because I have rejected that view of clause 85.1’s purpose and effect, it follows that clause 85.1 does not involve any ‘additional’ payment to an officer.

41      The claimant relied on the Federal Court’s decision in Touhey v Sanini Australia Pty Ltd [2022] FCA 55, which confirmed that s 80(1) of the WCIM Act permits the dual receipt of weekly payments of compensation under that Act and annual leave benefits. The claimant said it follows from the decision, that Mr Rossiter was entitled to a travelling time payment in addition to weekly payments.

42      Section 80(1) of the WCIM Act says:

(1) Compensation is payable in accordance with this Act to a worker in respect of any period of incapacity notwithstanding that the worker has received or is entitled to receive in respect of such period any payment, allowance, or benefit for annual leave or long service leave under any Act of the Commonwealth or of the State, any industrial award under any such Act, or any other industrial agreement applicable to his employment, and the amount of compensation so payable shall be the amount which would have been payable to the worker had he not received or been entitled to receive in respect of such period any such payment, allowance, or benefit.

43      In Touhey, her Honour Banks-Smith J said that s 80 permits the accrual of annual leave whilst an employee is absent from work and in receipt of compensation in respect of such absence under a compensation law for the purpose of s 130 of the Fair Work Act 2009 (Cth) (FWA). At [56] ‑ [57] her Honour stated:

It is apparent that the provision does not expressly provide or confer any entitlement to take or accrue annual leave - but does it 'permit' it? In my view the question is answered by the Full Court in Anglican Care v NSW Nurses and Midwives' Association [2015] FCAFC 81; (2015) 231 FCR 316 (Jessup, Bromberg and Katzmann JJ)…

Whilst there are some minor differences in terminology and structure, the Court in Anglican Care considered that s 49 of the NSW WC Act and s 80(1) of the WCIM Act are 'identical in terms': at [53]. The emphasised passages in both extracts from the legislation highlight the similarity.

44      And at [62] her Honour concluded:

Having regard to the careful reasoning of the Full Court, the fact that the issue was considered at appellate level and the similarity between the terms of s 49 of the NSW WC Act and s 80(1) of the WCIM Act, I would follow and apply Anglican Care. Accordingly, I am satisfied that the WCIM Act ‘sanctioned, condoned or countenanced’ and so permitted the dual receipt of compensation and annual leave benefits to Mr Touhey. The accrual of annual leave under the FW Act is a ‘benefit for annual leave’ under an Act of the Commonwealth within the meaning of s 80(1) of the WCIM Act. The concept of a ‘benefit’ is broad and its ordinary meaning extends to ‘anything that is for the good of a person’: Trewin v Comcare (1998) 84 FCR 171. It was common ground in Anglican Care that the accrual of annual leave was a benefit within the meaning of s 49 of the NSW WC Act: at [38]. (emphasis added)

45      The decision does not assist the claimant. As her Honour noted, s 80 is not the source of any entitlement or benefit. The claimant needs to show that Mr Rossiter had an entitlement or benefit under the Agreement. Section 80 allows Mr Rossiter to receive weekly payments notwithstanding his receipt of another benefit for annual leave. It is a law that ‘permits’ the receipt of annual leave benefits during a period of compensable incapacity for the purpose of s 130 of the FWA.

46      The respondent says there is no entitlement to pay for travelling time, in circumstances where an officer is permitted to be absent at the relevant time:

[W]hile the wages an officer would usually be entitled to but for the travel would be the wages he or she would earn for the shifts he or she is not required to perform usual duties, where an officer is incapacitated for work due to compensable injury would not be entitled to any wages because the officer cannot perform his or her duties.

47      As I have said already, the apparent objective intention of clause 85.1 is to ensure that an employee is not financially disadvantaged by being absent from work to undertake travel. It is not to enrich or compensate an employee.

48      The key phrase ‘paid travelling time’ connotes a close connection between payment and time. The payment must be referable and related to the time that is allowed for travelling. A payment that is unconnected with the travelling time, and unconnected with payments that the officer would ordinarily receive in that time, is not necessarily required, nor is it necessarily sufficient.

49      As a matter of construction, the clause requires the respondent to make payment to the officer who proceeds on annual leave an amount that properly relates to, or is sufficiently connected with, the amount an officer would otherwise receive for the relevant period of time had the officer not been required to travel. Put another way, the officer’s entitlement to the payment they would otherwise receive if they were at work, is to be maintained. The amount required will be a matter of fact.

Clause 85 did not confer an entitlement on Mr Rossiter

50      The parties agreed that Mr Rossiter worked both night shifts and day shifts. Ordinarily, a day shift commenced at 6 am and finished at 6 pm. A night shift ordinarily commenced at 6 pm and finished at 6 am the following day.

51      However, immediately before, during and immediately after Mr Rossiter’s annual leave period, he was absent from the workplace and in receipt of weekly payments of compensation.

52      In other words, Mr Rossiter was not rostered to work and was authorised to be absent from work.

53      In these circumstances, clause 85.1 did not apply to Mr Rossiter. It could not confer a benefit or entitlement on him. The benefit is for the employer to allow Mr Rossiter time off or to be absent from work. But he was not obliged to attend work. He was authorised to be off work in what was otherwise time he would be required to attend. The relevant time was time he would otherwise be required to attend work, if not for his compensable illness or injury.

Alternatively, if clause 85 did confer an entitlement on Mr Rossiter, it was satisfied

54      If I am wrong in my conclusion that clause 85.1 did not apply to Mr Rossiter, then I find that the respondent recognised the entitlement, by including five days for travel time in the roster which recorded Mr Rossiter’s annual leave. In this regard, the Superintendent’s Response to the dispute concerning the claim for travel time was in evidence as an agreed document.

55      The Superintendent’s Response records that:

Annual Leave letter periods at Broome Regional Prison are scheduled with a view to accommodating Officers' maximum potential period of absence, being 8 weeks comprising of:

• 5 weeks of ordinary annual leave under clause 79.1

• 1 week of additional annual leave under clause 79.2

• 1 week of additional annual leave under clause 79.3

• 5 days/40 hours of travel (as per clause 85.1 where Officers travel outside of the geographical region of their HQ and therefore are entitled to such Travel Time)

56      Consistent with this explanation, it is an agreed fact that Mr Rossiter was rostered ‘to proceed on a period of annual leave between 3 September 2021 and 28 October 2021.’ That was a period of eight weeks. The rostered period of absence from work, therefore, included five days/40 hours of travel in addition to seven weeks of annual leave.

57      In effect, Mr Rossiter was excused from his usual obligation to perform work duties on the relevant five days for two concurrent reasons: that he was incapacitated and because he was allowed time to travel to proceed on annual leave. Although this might appear conceptually awkward, it is consistent with the Agreement’s scheme concerning annual leave.

58      The respondent complied with the entitlement in clause 85.1 to allow Mr Rossiter to take time off work to travel. He was not required to travel in his own time. Mr Rossiter was allowed time to travel that, if not for incapacity, would have been time he was required to attend work.

59      As to the entitlement to pay, it is not in dispute that Mr Rossiter was paid weekly payments for incapacity at the rate of $2,409.66 gross per week for the period that was allowed as travel time. It is also an agreed fact that:

Mr Rossiter was not paid any amount in relation to the Travel Time entitlement under clause 85 of the Industrial Agreement at any time during the leave year which commenced 1 July 2021 and ended on 30 June 2022.

60      The only sensible conclusion that can be drawn from the agreed facts and agreed documents is that while the respondent did pay Mr Rossiter for the relevant period, it did not pay him anything in addition to the weekly payments, and it did not characterise the payment of weekly payments as payment in relation to travelling time under clause 85.

61      Therefore, as a matter of fact, the respondent did pay Mr Rossiter an amount that properly related to, and was sufficiently connected with, the amount he would otherwise have received for the relevant period of time had he not been required to travel. His entitlement to be paid for the relevant period was maintained without any loss to him.

Disposition and Orders

62      Accordingly, the claimant has not made out its claim that the respondent has contravened clause 85.1.

63      The claim will be dismissed.

R. COSENTINO

INDUSTRIAL MAGISTRATE