The Full Bench has dismissed an appeal in relation the interpretation and application of clause 138 of the Department of Justice Prison Officers Industrial Agreement 2020, specifically regarding the entitlement of prison officers to purchase additional leave. 

At first instance, the appellant alleged that four officers were denied their entitlement to purchased leave by the Minister for Corrective Services, claiming that relevant factors were not considered during the assessment of their applications. Industrial Magistrate O’Donnell found that the officers had indeed entered into purchased leave salary arrangements under clause 138.1 of the Agreement and that the prisons had complied with the requirements of clause 138.7, such as developing a leave roster and giving officers the opportunity to nominate preferred leave blocks. Despite these findings, O’Donnell IM determined that the prisons did not offer the officers access to the purchased leave blocks due to operational reasons, as they were experiencing resource constraints. Her Honour emphasised the pressure on human resources within the prisons and the inability to afford additional leave on top of the usual quota of annual leave. As a result, her Honour concluded that no contravention of clause 138 of the Agreement had been established, as it would have been pointless to engage in consultation with the officers when no leave blocks were being offered. 

The appeal raised various grounds, including errors in law and fact, alleging misapplication of consultation requirements and misinterpretation of the industrial agreement's clauses. The appellant's departure from the original statement of claim was questioned, as further alleged contraventions were introduced during the hearing at first instance beyond those outlined initially. The Full Bench emphasised the need for specificity and consistency in application grounds, written submissions and oral submissions at hearing. Given the initial statement of claim before the O’Donnell IM, the Full Bench found that it would not have been open for the her Honour to conclude that the respondent contravened cl 138 by failing to allow the relevant officers to take purchased leave as this was not the alleged contravention set out in the claim. To the extent that any of the grounds of appeal go beyond the alleged contravention in the claim before the her Honour, the Full Bench found that they are also not able to be dealt with by the Full Bench. However, in the event that they were incorrect in their assessment, the Full Bench proceeded to consider the grounds of appeal as advanced. 

The appeal primarily challenged the interpretation of clause 138, particularly regarding consultation obligations and leave accommodation. The Full Bench upheld O’Donnel IM’s decision, reasoning that consultation obligations do not arise when leave cannot be granted due to operational constraints. The Full Bench also rejected the appellant's contention that once officers entered into a Purchased Leave Scheme Agreement, they must be granted leave, emphasising the need to consider operational requirements outlined in the Agreement. Ultimately, the Full Bench dismissed the appeal, affirming her Honour’s decision on consultation obligations, leave accommodation, and operational consideration.

The decision can be read here.

NOTICE is given that the Commission, of its Own Motion, pursuant to section 40B of the Industrial Relations Act 1979 (WA), intends to vary the Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 (Shop & Warehouse Award).

The proposed variations are published in the annexed document and are being made for the purpose of updating and modernising the Shop & Warehouse Award.

The full Notice can be read here.

Under consideration by Industrial Magistrate Tsang was an application, seeking a review of a compliance notice issued by the respondent, Ms Catalucci, an Industrial Inspector, under the Industrial Relations Act 1979 (WA). The notice alleged that the applicant contravened the Long Service Leave Act 1958 (WA) by not paying pro rata long service leave to Mr McCormick upon his employment termination in October 2020. The compliance notice required the applicant to remedy the contravention by paying Mr McCormick $9,345.21.

The applicant did not dispute the employment period or the calculation but argued that Mr McCormick was not entitled to long service leave because his two employment periods were not continuous. The central legal question was whether the termination of Mr McCormick’s apprenticeship contract, leading to a break in employment, affected his entitlement to long service leave.

Tsang IM analysed the statutory construction of “continuous employment” under the Long Service Leave Act. Tsang IM rejected the applicant’s arguments, finding that the completion of the apprenticeship did not terminate Mr McCormick’s employment relationship, and his subsequent role as an Electrician constituted continuous employment. Tsang IM emphasised the ordinary meaning of the statute, its legislative purpose, and the absence of specific provisions deeming the termination of an apprenticeship as a break in continuous employment.

Ultimately, Tsang IM concluded that Mr McCormick’s employment was continuous, lasting from 23 October 2012 to 29 October 2020. Consequently, the applicant was obligated to pay pro rata long service leave, and since the company failed to prove otherwise, the compliance notice was confirmed, and the application was dismissed.

The decision can be read here.

In an application under section 66 of the Industrial Relations Act 1979 (WA), the applicant sought an order to establish an interim Board of Directors due to a misalignment of rules between the respondent and its federal counterpart, the Police Federation of Australia Western Australia Police Branch (PFAWA). Chief Commissioner Kenner affirmed the applicant’s standing to bring the proceedings, as a member of the respondent.

Due to changes in the PFAWA’s rules, it was doubtful that the respondent’s section 71 certificate, relieving it from holding elections for office holders, was effective. Consequently, the respondent aims to realign its rules with the PFAWA and seek a new section 71 certificate. Simultaneously, the applicant sought the establishment of an Interim Board of Directors to manage the respondent’s affairs during this transitional phase.

After reviewing the application and hearing both parties, Kenner CC decided to establish an Interim Board of Directors. Comprising members elected to the PFAWA Branch Executive, this Interim Board will function with all of the powers of the Board, outlined in the respondent’s rules. Kenner CC’s order exempts the respondent from holding an election during the order’s duration. The order will cease upon rule alterations being made and the issuance of a new section 71 certificate by the Full Bench.

The decision can be read here.

The applicant Union’s member was a police officer who travelled to the UK in March 2021 as part of a recruitment drive, promoting living and working as a police officer in Western Australia.

The Union and the Police Commissioner were in dispute about whether the member was entitled to overtime pay for the hours outside his rostered ordinary hours, while he was on the long-haul flights to and from London, and while he was waiting at the respective airports.

The issue was what the relevant overtime clause in the applicable industrial agreement meant when it referred to “all time worked.”

The Union invoked s 46 of the Industrial Relations Act 1979 (WA) to resolve the question of the meaning of ‘all time worked’ in the Western Australian Police Force Industrial Agreement 2022. Section 46 empowers the Industrial Relations Commission to declare the true interpretation of an award or industrial agreement that is in force.

The Union argued that any time that an officer is doing an activity because they are instructed, directed or required by the Police Commissioner to do it, they are working. The Union said that if an officer travels on an 18-hour flight paid for, organised by and required by the Police Commissioner, time spent on the flight is time spent working.

The Police Commissioner argued that while time spent on a flight may in some circumstances be time spent working, it would only be time spent working if during that time the officer was on duty in the sense of either being rostered on duty or being directed outside of rostered hours to engage in policing activities.

Senior Commissioner Cosentino analysed the text of the industrial agreement to ascertain what was the objective intention of the parties when referring to “all time worked” in the overtime clause. The Senior Commissioner noted that other provisions of the Agreement contained themes that indicated rosters are the primary means of determining when an officer is on-duty, that being on-duty and working are interchangeable, that there is intended to be a clear line between when an officer is on duty and when an officer is off duty, and time spent travelling to and from work is not itself time worked.

The Senior Commissioner then considered what being on duty involved. In this regard, the Police Force Regulations provide strong indications of what is and is not consistent with being on duty. An officer must be able to devote themselves “exclusively and zealously” to the discharge of their duties when on duty, which indicates that being on duty that is generally inconsistent with the officer, at the same time, being able to engage in private activities, such as sleeping, enjoying entertainment or engaging in private correspondence.

The Decision can be read here.