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Full Bench Upholds Denial of Purchased Leave

The Full Bench has dismissed an appeal in relation the interpretation and application of clause 138 of the Department of Justice Prison Officers Industrial Agreement 2020, specifically regarding the entitlement of prison officers to purchase additional leave. 

At first instance, the appellant alleged that four officers were denied their entitlement to purchased leave by the Minister for Corrective Services, claiming that relevant factors were not considered during the assessment of their applications. Industrial Magistrate O’Donnell found that the officers had indeed entered into purchased leave salary arrangements under clause 138.1 of the Agreement and that the prisons had complied with the requirements of clause 138.7, such as developing a leave roster and giving officers the opportunity to nominate preferred leave blocks. Despite these findings, O’Donnell IM determined that the prisons did not offer the officers access to the purchased leave blocks due to operational reasons, as they were experiencing resource constraints. Her Honour emphasised the pressure on human resources within the prisons and the inability to afford additional leave on top of the usual quota of annual leave. As a result, her Honour concluded that no contravention of clause 138 of the Agreement had been established, as it would have been pointless to engage in consultation with the officers when no leave blocks were being offered. 

The appeal raised various grounds, including errors in law and fact, alleging misapplication of consultation requirements and misinterpretation of the industrial agreement's clauses. The appellant's departure from the original statement of claim was questioned, as further alleged contraventions were introduced during the hearing at first instance beyond those outlined initially. The Full Bench emphasised the need for specificity and consistency in application grounds, written submissions and oral submissions at hearing. Given the initial statement of claim before the O’Donnell IM, the Full Bench found that it would not have been open for the her Honour to conclude that the respondent contravened cl 138 by failing to allow the relevant officers to take purchased leave as this was not the alleged contravention set out in the claim. To the extent that any of the grounds of appeal go beyond the alleged contravention in the claim before the her Honour, the Full Bench found that they are also not able to be dealt with by the Full Bench. However, in the event that they were incorrect in their assessment, the Full Bench proceeded to consider the grounds of appeal as advanced. 

The appeal primarily challenged the interpretation of clause 138, particularly regarding consultation obligations and leave accommodation. The Full Bench upheld O’Donnel IM’s decision, reasoning that consultation obligations do not arise when leave cannot be granted due to operational constraints. The Full Bench also rejected the appellant's contention that once officers entered into a Purchased Leave Scheme Agreement, they must be granted leave, emphasising the need to consider operational requirements outlined in the Agreement. Ultimately, the Full Bench dismissed the appeal, affirming her Honour’s decision on consultation obligations, leave accommodation, and operational consideration.

The decision can be read here.

Application to vary the Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977

NOTICE is given that the Commission, of its Own Motion, pursuant to section 40B of the Industrial Relations Act 1979 (WA), intends to vary the Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 (Shop & Warehouse Award).

The proposed variations are published in the annexed document and are being made for the purpose of updating and modernising the Shop & Warehouse Award.

The full Notice can be read here.

Long Service Leave Contravention Upheld: Employment found to be Continuous

Under consideration by Industrial Magistrate Tsang was an application, seeking a review of a compliance notice issued by the respondent, Ms Catalucci, an Industrial Inspector, under the Industrial Relations Act 1979 (WA). The notice alleged that the applicant contravened the Long Service Leave Act 1958 (WA) by not paying pro rata long service leave to Mr McCormick upon his employment termination in October 2020. The compliance notice required the applicant to remedy the contravention by paying Mr McCormick $9,345.21.

The applicant did not dispute the employment period or the calculation but argued that Mr McCormick was not entitled to long service leave because his two employment periods were not continuous. The central legal question was whether the termination of Mr McCormick’s apprenticeship contract, leading to a break in employment, affected his entitlement to long service leave.

Tsang IM analysed the statutory construction of “continuous employment” under the Long Service Leave Act. Tsang IM rejected the applicant’s arguments, finding that the completion of the apprenticeship did not terminate Mr McCormick’s employment relationship, and his subsequent role as an Electrician constituted continuous employment. Tsang IM emphasised the ordinary meaning of the statute, its legislative purpose, and the absence of specific provisions deeming the termination of an apprenticeship as a break in continuous employment.

Ultimately, Tsang IM concluded that Mr McCormick’s employment was continuous, lasting from 23 October 2012 to 29 October 2020. Consequently, the applicant was obligated to pay pro rata long service leave, and since the company failed to prove otherwise, the compliance notice was confirmed, and the application was dismissed.

The decision can be read here.

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