Full Bench considers construction of police industrial agreement
- Created: 21 February 2020
The Full Bench has unanimously found that the Industrial Magistrate’s Court (IMC) did not have the power to issue an order requiring the Commissioner of Police (Commissioner) to reconsider a police officer’s claim for reimbursement of certain non-work-related medical expenses. The Full Bench also found that the hire and purchase of a continuous positive airway pressure (CPAP) machine do not relate to a ‘service’ within meaning of cl 36(1) of the Western Australian Police Industrial Agreement 2014 (the Agreement).
The applicant made a claim to the IMC that the Commissioner failed to provide adequate justification for denying payment of his claims for reimbursements of specified non-work-related medical expenses, including the purchase and hire of a CPAP machine. The applicant argued that the Commissioner was required to grant reimbursement. Flynn IM considered whether the Commissioner had exercised the discretion conferred by the agreement and found that the Commissioner may have incorrectly interpreted the agreement. Flynn IM ordered that the Commissioner re-consider the reimbursement claims.
On appeal to the Full Bench, the appellant noted that if it can be proved that a person contravened a provision of an instrument to which s 83 of the Industrial Relations Act 1979 (WA) applies, the Magistrate may either issue a caution or penalty. The appellant argued that the imposition of a penalty is a precondition for the making of an order for the purpose of preventing a further contravention. The appellant argued that since the Industrial Magistrate imposed a caution and not a penalty, he had no power to make an order that the Commissioner reconsider the applicant’s claim for reimbursement.
Chief Commissioner Scott and Commissioner Matthews found that as no penalty was imposed, there was no power to make an order preventing a further contravention.
The appellant also argued that the Industrial Magistrate erred in law by finding that the hire or purchase of CPAP machine by an employee covered by the Agreement amounts to the receipt of an ‘other service’ by that employee within the meaning of cl 36(1)(b) of the Agreement.
Scott CC found that the hire and purchase of the CPAP machine do not fall within the meaning of a service but was more akin to a medical aide. Scott CC found that, in this context, the Industrial Magistrate erred in finding that it was open to the Commissioner to construe cl 36(1) to find that the machine hire and purchase expenses claims relate to an X-ray or ‘other service’. Scott CC and Matthews C found that the purchase and hire of the CPAP machine do not constitute a reimbursable expense resulting from a service and therefore, do not fall within cl 36(1).
The Full Bench, having found that the orders were beyond power; the Industrial Magistrate erred in finding that it was open to the Commissioner to construe cl 36(1) to find that the machine hire and purchase costs relate to a service, and was a reimbursable expense, upheld the appeal, quashed the Industrial Magistrate’s decision and dismissed the complaint.
The decision can be read here.