A decision of the Public Service Appeal Board  is not a decision of the Commission constituted by a Commissioner.

The appellant file an appeal under s 49(2) of the Industrial Relations Act 1979 (WA) from a decision of the Public Service Appeal Board dismissing his appeal from PSAB 60 of 2022.  The following day, the respondent filed an application that the appeal should be dismissed, as not being within the jurisdiction of the Full Bench under s 49 of the Act.

The Full Bench dismissed the appeal because decision of the Appeal Board is not a decision of ‘the Commission constituted by a Commissioner’, for the purposes of s 49(1) of the Act.  Therefore, under s 49(2) of the Act, no appeal was being brought from ‘any decision of the Commission’. 

The decision can be read here.

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.