The applicant made an application for an interpretation of the term "full pay" as used in s 82 of the Public Sector Management Act 1994 (WA) (PSM Act) and the Department of Justice (Youth Custodial Officers) CSA Agreement 2022. This issue arose when a Juvenile Custodial Officer, who was receiving a Higher Duties Allowance (HDA), was suspended due to a breach of discipline. The officer was initially paid the HDA during the suspension, but it was later discontinued.

The applicant argued that "full pay" should include the HDA during the suspension period, supported by the officer’s rostered acting position, and sought a declaration interpreting “full pay” under s 46 of the Industrial Relations Act 1979 (WA) (IR Act), because the term was not explicitly defined in the Agreement.

The respondent contended that the Public Service Arbitrator lacked the jurisdiction to make the declaration sought by the applicant, and that interpreting "full pay" in the PSM Act would require statutory interpretation principles, which differ from those applied to an Award or Agreement.  The respondent also argued that a declaration under s 46 of the IR Act would not solve the dispute, and urged the Arbitrator to exercise discretion against doing so.

Commissioner Walkington considered whether the Arbitrator had jurisdiction to interpret the term "full pay" and, if so, whether to exercise discretion to issue a declaration. The Commissioner noted that s 46 of the IR Act empowers the Commission to interpret awards and agreements it has made but limits statutory provisions like the PSM Act. The Commissioner also noted that the Agreement did not contain provisions regulating the suspension of employees, and a declaration under s 46 would not assist in determining the meaning of "full pay" in the context of suspension and HDA application.

The Commissioner declined to make the declaration and concluded that the Public Service Arbitrator did not have the necessary jurisdiction to declare the meaning of a statutory term under s 46 of the IR Act, and that a declaration would not resolve the dispute regarding the meaning of "full pay" in the context of the suspension. Accordingly, the application was dismissed.

 

The decision can be read here.