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.

The Commission has set aside a summons for a Bishop to give evidence as to the identity of the legal employing authority in a contractual benefit claim.

The applicant, a teacher, issued a summons for the Bishop to give evidence in this matter. He submitted that the ‘legal’ employer needed to be verified before the hearing, as the employment authority changed between the Bishop of Bunbury, the Catholic Education Commission of WA and the College Principal several times. The applicant maintained that the Bishop was aware of the terms of his employment contract and this matter.

The applicant further submitted that the attendance of the Bishop was required because he had been misdirected by the Roman Catholic Bishop of Bunbury (RCBB) on the issue of the legal identity.

The respondent, the RCBB, applied for the summons to be set aside. It submitted that the Bishop had no knowledge about the terms of the employment contract and was not able to respond to questions concerning the employment contract. The respondent contended that it would be inefficient and unnecessary for the Bishop to give evidence in this matter.

Commissioner Walkington found that the employing authority was the RCBB as per an order made on 1 July 2020 to amend the name of the respondent to the “Roman Catholic Bishop of Bunbury”. She found that the issue of the legal employing authority was considered and determined at the time this order was made.

Walkington C also found that the applicant had not provided any evidence to support his assertion that the RCBB had sought to misdirect him as to the legal employing authority.

The summons has been set aside by order.

The decision can be read here.

The Industrial Magistrate has confirmed a Compliance Notice issued pursuant to the Fair Work Act 2009 (Cth) on the basis that the employer failed to pay an employee overtime as required under the Restaurant Industry Award 2010 (Cth) (the Award).

Background

The claimant operated a restaurant called Chocolateria San Churro, Northbridge.

Between July 2011 and May 2016, the employee was employed by the claimant on a full-time basis, including during the period of October 2013 to May 2016 (the Contravention Period). During the Contravention Period, the employee claimed that he routinely worked 50 - 60 hours over 6 days per week but was not paid overtime as required under the Award.

In September 2019, the respondent, being a Fair Work Inspector, issued a Compliance Notice to the claimant in respect to the employee’s employment during the Contravention Period. The Notice alleged that the employee was employed as a ‘Food and beverage attendant grade 3’ (the Attendant) under the Award and required the claimant to calculate and rectify its failure to pay the employee overtime for that classification.

Submissions

The claimant argued that as the employee was a Manager, the Award could not apply to his employment. Alternatively, the claimant argued that if the employee was covered by the Award, the employee would not have been classified as the Attendant. This was because the work performed by the employee included further duties which placed him outside of the Award.

The claimant sought a finding that it did not contravene the Award and said that the Notice should be cancelled.

The respondent said the Notice should be confirmed as the Award applied to the employee’s employment and the appropriate classification under the Award is the Attendant.

Findings

Industrial Magistrate Scaddan found that although the employee was employed as a Manager, the majority of his work involved the duties described under the meaning of the Attendant in the Award. Her Honour noted that whilst the employee performed other duties, some of which could be described as managerial or supervisory, there was no clear evidence that these duties formed the major or substantial part of his work.

Her Honour also found that the employee held the appropriate qualifications and level of training to be classified as the Attendant.

Scaddan IM determined that the Award applied to the employee’s employment during the Contravention Period and he was required to be paid as the Attendant as described in the Award.

The Compliance Notice was confirmed.

The decision can be read here.

The Commission has dismissed a claim for a denied contractual benefit as it found that there was no contractual agreement to vary an employee’s contract so that the employee would receive 2.5% of his employer’s profits in any year, in addition to his ordinary salary.

The employee worked for his employer from June 2013 to July 2018. At various times over the course of his employment, his employer paid him money over and above his ordinary salary. The employee said that the amounts were paid to him pursuant to an oral agreement, having contractual effect, made between him and the employer’s managing director in early 2015.

The employee said that the exact term of the agreement was that he would receive, in addition to his ordinary salary, a sum equating to 2.5% of the employer’s profit in any year, where a profit was made. The employee claimed that for the 2017-18 financial year, he was denied that contractual benefit.

Commissioner Matthews received evidence from the employee, as well as from the employer’s managing director, general manager and administration manager.

Matthews C found that there was no evidence that a contractual agreement had been made to vary the employee’s contract so that he would receive 2.5% of any profits made into the future.

Matthews C’s view was that the employer liked to give his employees some money from time to time. There was nothing predictable or formal about this and it was certainly not contractual in nature.

The claim was dismissed.

The decision can be read here.

The Industrial Magistrate has upheld, in part, a claim for penalty rates for work performed on the weekend, unpaid annual leave and three weeks’ payment in lieu of notice of termination.

The claimant entered into an oral contract with the respondent to undertake work for him as a real estate sales representative until this arrangement was terminated by the respondent.

The claimant claimed:

• penalty rates for work performed on the weekends at the rates claimed for a ‘Grade 6 Administration Officer’ pursuant to the Clerk (Commercial, Social and Professional Services) Award No. 14 of 1972 (WA) (the Award);
• unpaid annual leave pursuant to the Award, or in the alternative, pursuant to the Minimum Conditions of Employment Act 1993 (WA) (MCE Act); and
• three weeks’ payment in lieu of notice of termination of employment.

The role of the claimant’s employment was in dispute. The claimant claimed that he was in an employee/employer relationship with the respondent. The respondent disputed this and maintained that the claimant was an independent contractor.

Industrial Magistrate Hawkins found, after considering the totality of the relationship, that the claimant was in an employee/employer relationship with the respondent and not an independent contractor.

However, her Honour found that the Award did not apply to the claimant’s employment as the claimant’s role did not wholly or principally require him to carry out the clerical duties outlined in the Award classification relied upon by the claimant or any of the classifications in the Award. Her Honour found, accordingly, that the claimant had no entitlement to claim penalty rates and annual leave pursuant to the Award.

However, Hawkins IM found that the claimant was entitled to annual leave pursuant to s 23 of the MCE Act as he was engaged as a permanent part-time employee and not a casual worker.

Her Honour also found that since there was no written notice given to the claimant of the date of termination of his employment, the claimant was entitled to be paid three weeks’ wages in lieu of notice.

The decision can be read here.