The Commission determined that the interpretation of 'continuous service' in two separate agreements in the Western Australian health system was straightforward and corresponded with the definitions provided within the agreements themselves.

The matter concerned a dispute related to the interpretation of clauses in two separate agreements in the Western Australian health system. United Workers Union (UWU) applied for a declaration on the true interpretation of clauses in the Education Assistants' (Government) General Agreement 2023 and the Government Services (Miscellaneous) General Agreement 2023, both of which outlined entitlements to long service leave based on continuous service. The Director-General of the Department of Education was the Employer party to the Education Assistants Agreement, while numerous government agencies collectively represented the Employers in the Government Services Agreement.

UWU argued that 'continuous service' should be understood according to its common-sense, plain English meaning. In contrast, the Employers contended that 'continuous service' referred only to qualifying service since the registration of the industrial agreement containing the casual Long Service Leave clause.

Senior Commissioner Cosentino found that there was no ambiguity in the references to 'continuous service' in the relevant clauses of both agreements. The Education Assistants Agreement and the Government Services Agreement did not contain any ambiguity, and the words in question did not support the interpretation advocated by the Employers. As a result, the Commission provided directions regarding the true interpretation of 'continuous service' in both agreements, clarifying that it aligns with the continuous service specified within each respective agreement's clauses.

The decision can be read here.

The Australian Medical Association (AMA) made a claim on behalf of six doctors who submitted that, during their periods of employment in the public health system, they should have been classified as “Consultant” under the relevant industrial agreements.

The relevant industrial agreements defined “Consultant / Specialist” as follows:

“Consultant / Specialist” means a medical practitioner who holds the appropriate higher qualification of a University or College, recognised by the Australian Medical Council (“the AMC”), and includes a Fellow of the Australasian Chapter of Addiction Medicine, or, in exceptional circumstances to satisfy areas of unmet need, such other specialist qualification recognised by the Director General of Health and who, unless otherwise approved by the Director General of Health, is employed and practising in the specialty for which he/she is qualified.

Industrial Magistrate O’Donnell found the word “appropriate” in the phrase  “the appropriate higher qualification of a University or College” meant a qualification recognised by the AMC that leads to a speciality in a particular field of medical practice, including in the case of general practice, FRACGP and FACRRM.

The six doctors were therefore found to hold the appropriate higher qualification as referred to in the Consultant/Specialist classification. Her Honour  also concluded the classification additionally required that the doctor to be employed and practicing in the specialty for which the doctor is so qualified. 

Her Honour was satisfied, therefore, that it was possible for the six doctors to have been classified as Consultant/Specialists. However, her Honour noted that there were other classifications in the industrial agreement which could also appropriately be applied to the doctors. Accordingly, the employer’s use of these other, appropriate classifications, meant there had been no breach of the industrial agreement.

The decision can be read here.

The Department of Justice Prison Officers’ Industrial Agreement 2020 allows prison officers covered by it to purchase additional leave by foregoing salary. Four officers who were members of the Western Australian Prison Officers Union had entered into purchased leave arrangements. However, when the officers applied to access additional leave, their requests were declined on the basis of the operational needs of the relevant prisons.

The Union alleged the employer was in breach of the industrial agreement. It argued that, having agreed to enter into the purchased leave arrangements, the industrial agreement required the employer to make the leave available, and that the employer could not avoid making the leave available under any circumstances.

The industrial agreement relevantly provided:

Where more Officers than can be accommodated nominate for a particular block [of leave] the Employer will decide in consultation with those Officers directly affected who is to be allocated the period.

Industrial Magistrate O’Donnell noted that the prisons were experiencing a great deal of pressure on their human resources, and had reasonably concluded that they could not afford to allow officers to take additional leave on top of their usual annual leave. Her Honour further found that based on the above clause, it was open to the employer to find that even one officer who nominated for a block of leave might be more than can be accommodated. Accordingly, it was fair and logical for the prisons to decline all officers’ additional leave, rather than engage in consultation under the above clause.

Her Honour accordingly found there was no breach of the industrial agreement.

The decision can be read here.

The Western Australian Prison Officers Union brought proceedings on behalf of its member who was a Principal Officer at the Karnet Prison Farm. The Union alleged the officer should have been paid at overtime rates for her work on the King’s Birthday public holiday.

The employer denied the claim on the basis that payment for working public holidays was part of the officer’s annual salary.

The Union and the employer disagreed about which clauses of the industrial agreement applied to the officer and how those clauses applied. Industrial Magistrate Kucera needed to determine the meaning of certain terms of the industrial agreement.

His Honour found there was ambiguity in the industrial agreement, so that it was necessary to have regard to surrounding circumstances and the context in which the agreement was negotiated. Doing so, his Honour concluded that the annualised salary for officers was only for ordinary hours, and that working on public holidays was not included in the annualised salary.

Further, his Honour found that the rostered hours for a principal officer are the ordinary hours, and principal officers are not paid for working public holidays.

Accordingly, the public holiday that the Principal Officer had worked on the employer’s direction attracted overtime, and the failure to pay overtime was in breach of the industrial agreement.  

The decision can be read here.

“The provisions of the Industrial Relations Act related to the production of records are necessary tools which allow industrial inspectors to obtain employment records to protect the rights of employees in this State. When an employer fails to – or in the case of these co-offenders, refuses – to comply, then it effectively stymies any investigation. A strong message needs to be sent, not only to these co-offenders, but also to other employers, that such behaviour is utterly reprehensible. General deterrence looms large in this sentencing exercise.”

On 9 December 2021 the Court made two orders requiring the two individual respondents to produce employment records by set dates. Neither individual complied with the orders. Through their lawyer, they changed their not guilty pleas, to guilty pleas on all of the charges. They were accordingly convicted upon their pleas of guilty of two charges each for failing to comply with court orders contrary to s 83E(9) of the Industrial Relations Act 1979 (WA).

Industrial Magistrate Coleman noted that the co-offenders deliberately chose to ignore the Court order. They each made a conscious and deliberate decision not to comply. Her Honour also noted that it was an understatement to say Mr Imam had behaved abhorrently towards the department’s representatively throughout their investigative process. His conduct was described as a “tidal wave of vitriol.” Her Honour described an apology letter to the Court as absurd and beggaring belief, in light of his unfounded accusations against the Department. Her Honour described his behaviour as “utterly reprehensible and shameful.” Accordingly, her Honour:

• Declined to discount the penalty on account of remorse;
• Allowed a 20% discount for the early acceptance of liability by the guilty plea;
• Considered the co-defendant’s deliberate obstructiveness as an aggravating factor;
• Determined that it was appropriate to impose a single fine for both charges against each individual under s54 of the Sentencing Act
• Determined that it was appropriate to additionally impose a further penalty relating to the daily penalty.

One co-offender, Mr Hui was ordered to pay  a total penalty of $44,000 while Mr Imam was ordered to pay a total penalty of $45,800.

The decision can be read here.