The Commission has dismissed a claim for denied contractual benefits as it found that it had no jurisdiction to hear and determine the matter since the applicant’s salary exceeded the prescribed amount specified in reg 5 of the Industrial Relations (General) Regulations 1997 (WA).

Contentions

The applicant, a tug master, claimed that he had been denied several entitlements including the restoration of 30 days of personal leave and the back payment of two months’ salary and superannuation.

The applicant contended that the relevant period that ought to be considered material for this matter was between 15 April 2019 to 15 April 2020. He claimed that the payment received by him during this period was the total of his base salary, statutory superannuation and additional superannuation contributions.

The respondent, the applicant’s employer, objected to the claim and contended that the Commission lacked jurisdiction to deal with the matter on the basis that the employment contract provided for a salary that exceeded the prescribed amount.

The respondent contended that the material period was the twelve months prior to the date of the applicant’s claim, that being 20 March 2020. It also claimed that the relevant payments that were to be considered included the base salary and the additional superannuation contributions but excluded the statutory superannuation payments.

Findings

Commissioner Walkington found that the prescribed amount for the purposes of determining the applicant’s claim was $166,680.

Walkington C found that the applicant was not correct to include payments received for statutory superannuation. She found that when the formulas in either reg 5(2)(a) or reg 5(2)(b) (with the latter applying where there was not a period of leave without pay) were correctly applied to the period between 15 April 2019 to 15 April 2020, the applicant’s salary exceeded the prescribed amount. This was also the case when the formulas were applied to the material period contended by the respondent, being 21 March 2019 to 20 March 2020.

The claim was dismissed for lack of jurisdiction.

The decision can be read here.

The Public Service Arbitrator has issued an order that the Western Australia Police Force Industrial Agreement 2020 contain a new clause providing for two Rest Days per annum, on full pay, for each police officer.

Background

The Western Australia Police Industrial Agreement 2017 expired on 30 June 2017. The bargaining process for a new industrial agreement was unsuccessful, and the Arbitrator issued a declaration on 30 April 2020 that bargaining had ended between the WA Police Union of Workers and the WA Police Force. This decision can be read here.

Following the declaration, an application was made by the WA Police Union (applicant) for an enterprise order under s 42I of the Industrial Relations Act 1979 (WA). Further discussions and proceedings between the applicant and the Commissioner of Police (respondent) followed, which led the parties to reach agreement except on one matter only.

The matter in respect of which the parties had not reached agreement was the applicant’s claim for five days “Additional Leave”.

Submissions  

The applicant contended that justification existed for its claim for five days additional leave on several grounds, including that:

• policing can be corrosive to office wellbeing;
• police officers hold a unique position in the community, including increasingly difficult and stressful working conditions;
• the leave is to assist the maintenance and support of police officer wellbeing and mental health;
• there is a marked reluctance by police officers to take sick leave for mental health reasons;
• the existing sick leave is inadequate for these recuperative purposes;
• interstate police officers and other WA public sector groups receive more beneficial entitlements; and
• the claim is well-affordable for the State government.

The respondent objected to and opposed the applicant’s claim. Its contentions included that:

• there is no evidence that providing additional paid leave to police officers will improve their mental health and wellbeing;
• there are operational and financial difficulties associated with granting the leave;
• there is clear potential for flow-on to other occupational groups in the public sector;
• the respondent has many other measures and strategies to support officer wellbeing, including psychological support services and a 72-hour compulsory absence from work after exposure to a critical incident; and
• the argument that other public sector groups in WA receive more beneficial entitlements to leave failed to have regard to the history and development for the conditions of service for the public sector employees concerned.

Consideration

The Arbitrator, Senior Commissioner Kenner, considered the evidence provided by the parties as to the state of the WA economy and concluded that the most recent economic data on the performance of the State economy was encouraging. However, Kenner SC noted the severe impact of the COVID-19 pandemic on the State’s economy and the need to approach the present matter with some caution.

Kenner SC also considered witness evidence of police officers from both parties. He accepted the evidence that the work that police officers perform is demanding, stressful and may be corrosive to their health and wellbeing. He also accepted the evidence as to the hyper-vigilance that accompanies being a police officer and the uniqueness of policing work.  In terms of offending, Kenner SC concluded that there has been no appreciable overall increase in offending against property and persons over the last five years and property offences have fallen substantially.  Domestic violence incidents have substantially increased.  Whilst the use of the drug has increased in the community, there has not been an increased rate of violent offending resulting from methamphetamine usage.

Kenner SC also considered evidence on the impact of leave on an officer’s mental health and wellbeing. He noted that a major issue was the absence of a definite research link between more leave and better mental health and wellbeing. However, Kenner SC considered there were two significant learnings from this case:

1. Firstly, he was satisfied on the evidence that how leave for rest and recreation is taken is important. He noted the evidence pointed to more regular, but shorter, breaks as being beneficial; and
2. Secondly, is the need for some control by a police officer over when leave it taken. That is, leave being taken at a time when an officer considers that they most need a short break.

Kenner SC then considered the comparative positions of the entitlements received by WA Police Officers to those interstate and concluded that WA Police Officer were not out of step with their peers in the Eastern States in relation to annual leave.  He also found that the applicant’s comparisons to the entitlements received by other public sector groups were at odds with its principal argument that policing work is unique and should regarded as different.

Lastly, Kenner SC considered the respondent’s current initiatives to promote mental health and wellbeing, as well as police operations and the cost impact of the applicant’s claim. He found that the costs of the applicant’s claim, if granted in full, is likely to be substantial, although probably less than the stated estimate by the respondent.

Conclusion

The Arbitrator concluded, on consideration of the evidence above, that he was not persuaded that an additional week’s leave should be granted.

He concluded, however, that in recognition of the unique nature and corrosive impact of policing work, an order should be made that the Industrial Agreement contain a new clause providing for two Rest Days per annum, on full pay, for each police officer.

Kenner SC noted that the Rest Days are intended to be available to a police officer, at their election and at a time nominated by them, in order that they have a short break from the rigours of policy work, when necessary.

The decision can be read here.