The applicant union applied to the Commission to interpret clause 45.1(a) of the Western Australian TAFE Lecturers’ General Agreement 2021, particularly regarding whether employees are entitled to accrue annual leave while on leave receiving workers’ compensation payments, and requesting the Commissioner make a declaration as submitted by the parties with such a determination. The application was subsequently adjourned pending the conclusion of a relevant Full Bench decision for another matter. Following the decision of the Full Bench in that matter, the parties confirmed they did not seek to make further submissions and submitted a revised declaration.

The applicant union contended that the term ‘year of service’ in clause 45.1(a) should include periods when an employee is absent from work receiving workers’ compensation payments under the Workers’ Compensation and Injury Management Act 1981 (WCIM Act). They argued that the Agreement does not define ‘service’ or ‘continuous service’ for annual leave, so these terms should be interpreted according to their ordinary meanings. The Union also contended that the WCIM Act requires an employer to maintain an employee’s employment while they are receiving workers’ compensation, thus allowing the employee to accrue annual leave during their absence.

The respondents argued that while there is no definition of ‘service’ or ‘year of service’, clauses 51.4(b) and 51.8 make it clear that periods of personal leave without pay exceeding three months are excluded from qualifying service for accruing annual leave. They contended that the Agreement objectively intended for periods of leave on workers’ compensation to be deemed personal leave without pay for the purposes of the Agreement.

Commissioner Tsang considered the contentions of both parties and determined that the applicant had not sufficiently supported their argument that employees are entitled to accrue annual leave while absent from work on unpaid personal leave and receiving worker’s compensation.  Accordingly, the Commissioner determined that as the applicant had not persuaded her of their case, the Commissioner declined to make the declaration and dismissed the application.

The decision can be read here.