WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

PARTIES Jim Victor Pooley;

 Alan Joseph Gordon;

 James Michael Nevin

CLAIMANT

-v-

Commissioner of Police

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE P HOGAN

HEARD Wednesday, 31 October 2007, Thursday, 22 November 2007

DELIVERED Thursday, 22 November 2007

CLAIM NO. M 47 OF 2007, M 48 OF 2007, M 52 OF 2007

CITATION NO. 2007 WAIRC 01254

CatchWords Industrial Agreement; Alleged breach of Industrial Agreement; Failure to pay salary and allowances retrospectively; "Employee"; Whether Industrial Agreement applied to past employees.

Legislation Industrial Relations Act 1979

 Western Australian Police Service Enterprise Agreement for Police Act Employeees No. PSAAG 45 of 2003

 Western Australia Police Industrial Agreement 2006

Cases Cited Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] 149 CLR 337

Cases referred to

in decision Corlett Bros Pty Ltd v Transport Workers Union 55 WAIG 644

 Department of Community Services & Os v Civil Service Association 74 WAIG 1709

 Director General of the Ministry for Culture and the Arts v Civil Service Association & Os 80 WAIG 453

 Paul Andrew Bennett and Craig Bradley Dix t/a Finesse Painting and Property Maintenance v Murray Ross Higgins 85 WAIG 1456

 Jodi Ann Hoffman v Western Australian Aboriginal Media Association (Aboriginal Corporation) 80 WAIG 5182.

Result Claim dismissed

Representation 

Claimant Mr P Momber (of counsel) appeared for claimants

Respondent Mr R Bathurst (of counsel) appeared for the respondent

REASONS FOR DECISION

Introduction

1          These proceedings are brought pursuant to Part III of the Act and in particular sections 83 and 83A.  Section 83 relevantly provides for enforcement of an industrial agreement and section 83A for payment of monies underpaid to an employee.  This Court’s jurisdiction is limited to that conferred by sections 81A and 81AA of the Act.  This Court is confined to determining the application of an award or industrial agreement and, if applicable, whether there has been relevant compliance.

2          Each of the claimants are retired police officers.  Mr Pooley retired 31 July 2006, Mr Gordon retired 26 July 2006 and Mr Nevin retired 24 August 2006.  Each was appointed to be a member of the Western Australia Police Force (“WAPOL”) by the respondent.  Pursuant to Schedule 3 to the Industrial Relations Act 1979 (“the Act”), each claimant became an employee of the respondent from 4 December 2000.  In the period 1 July 2006 until retirement each of the claimants had been paid their salary and allowances as provided by the Western Australian Police Service Enterprise Agreement for Police Act Employees No PSAAG 45 of 2003 (“ the 2003 Industrial Agreement”).

3          On 18 December 2006 the Western Australia Police Industrial Agreement 2006 (“the 2006 Industrial Agreement”) was registered by the Western Australian Industrial Relations Commission (“the Commission”) to replace the 2003 Industrial Agreement.  There is no dispute that “employee” carries the same definition in each of those Agreements.  There is no dispute that the 2006 Industrial Agreement is an Industrial Agreement as provided for by section 41 of the Act.

4          Clause 4 of the 2006 Industrial Agreement relevantly provides:

(1)  This Agreement shall operate from the date of its registration to 30 June 2009.

(2)  (a)   Despite subclause (1), above, the Employer will pay employees the increased salary and allowances (other than the covert allowance) provided for in this Agreement as from 1 July 2006.

(b)   Payment of shift allowance under clause 16 for shifts worked on or after 1 July 2006 but before the registration of this Agreement will be based on the shift definitions set out in the Western Australian Police Service Enterprise Agreement for Police Act Employees 2003.  (For example, an employee who works an afternoon shift (as that term is defined in the Western Australian Police Service Enterprise Agreement for Police Act Employees 2003) after 1 July 2006 but before the registration of this Agreement will be entitled to payment for that shift at the afternoon rate specified in this Agreement.  This is the case irrespective of whether, under this Agreement, the shift worked would have been classified as an afternoon shift or an evening shift.)

5          It is clear that the 2003 Industrial Agreement continued to apply until 18 December 2006 but that “employees” under the 2006 Industrial Agreement were entitled to retrospectivity from 1 July 2006 as per the provisions of clause 4(2).  There is no dispute that employees who remained in employment, as at 18 December 2006, were paid retrospectively any increases in salary and allowances from 1 July 2006.  The claimants were not.  There is no dispute that “employees” covered by the 2006 Industrial Agreement are entitled to relevant retrospective payments from 1 July 2006 to 18 December 2006.  The respondent’s case is that the claimants have no entitlement under the 2006 Industrial Agreement as it was registered after their respective resignations.  The primary issue for resolution raised by the defence is whether each of the claimants are “employees” as defined in the 2006 Industrial Agreement.

6          In submitting that the claimants are covered by the 2006 Industrial Agreement, counsel for the claimants essentially relies on the following:

(i) the reference in clause 1(4) of the 2006 Industrial Agreement to 5,311 employees being a figure that included each of the claimants; and

(ii) the decision of the Western Australian Industrial Appeal Court in Corlett Bros Pty Ltd v Transport Workers Union 55 WAIG 644 (Corlett).

Clause 1(4)

7          In submitting that the claimants are employees for the purposes of the 2006 Industrial Agreement, counsel for the claimants points to clause 1(4) of the 2006 Industrial Agreement.  This clause provides:

As at 1 July 2006, the number of employees subject to this Agreement totalled 5311.

8          Counsel submits there is no inconsistency, ambiguity or vagary in terms of the 2006 Industrial Agreement; that it is clear in clause 1(4) that the employees entitled to the retrospectivity provided for in clause 4(2) are the 5,311 officers employed as at 1 July 2006.

9          The respondent called Ms Renae Lavell who was, at the relevant time, Acting Manager of Employee Relations at the Workplace Relations Branch of WAPOL.  Effectively, Ms Lavell’s evidence was that the figure of 5,311 was provided to meet the requirements of section 41A(1)(c) of the Act.  Ms Lavell received the figure from the Management Information Officer.  Ms Lavell’s unchallenged evidence was that the figure included all sworn officers, not all of whom are in fact covered by the 2006 Industrial Agreement (i.e. the Commissioner, Deputy Commissioners and Assistant Commissioners).

10       The draft in which it seems the figure first appeared was provided to the parties involved in negotiations on 7 July 2006.  Exhibit 3 (Police Officer Profiles – July 2006 to December 2006) demonstrates that the figure of 5,311 was the total number of members employed as at the end of June 2006.  There is no dispute that each of the claimants were sworn officers as at the end of June 2006 and hence were included in that headcount (along with certain officers not in fact “subject to (the) Agreement”.

11       Ms Lavell gave evidence that: the figure was not changed in the final agreement as she only had four days to produce the final draft; she knew that only an estimate was required under the Act and; “I did not have time to get an up to date figure”.

12       Ms Lavell referred to the fact that in the draft presented by the WA Police Union to WAPOL in April 2006 (Exhibit 1), the union had changed the date in clause 1(4) to the expected date of registration (i.e. 1 July 2006) and left blank the number of employees subject to the Agreement.  The union had written “(insert current figure)”.

13       Ms Lavell’s evidence was led, over objection from counsel for the claimants, on the basis that there was ambiguity attached to the inclusion of a figure in clause 1(4) representing, as at 1 July 2006, the number of employees subject to this Agreement under the heading referring to “Estimated Numbers of Employees Bound upon Registration of Agreement” (emphasis added).  Given such wording, it is not clear whether the figure was an estimate, as referred to in the heading, or otherwise.

14       In fact, the 2006 Industrial Agreement provides a commencement date (clause 4(1)) and a date from which retrospectivity of certain payments applies (clause 4(2)).  Clearly the retrospectivity applies to “employees”.  “Employee” is defined in clause 6 of the 2006 Industrial Agreement as meaning:

. . .any person appointed under the provisions of the Police Act 1892 as a Member of the Western Australia Police Force or as an Aboriginal Police Liaison Officer.

15       In determining whether that definition encompasses any person who was employed as at 1 July 2006 but ceased such employment prior to 18 December 2006 one needs to examine the 2006 Industrial Agreement in its entirety.  The heading of clause 1 includes reference to “Estimated Numbers of Employees Bound upon Registration of Agreement”.  Clause 1(4) purports to provide a figure representing the number of “employees” as at 1 July 2006.

16       The evidence presented through Ms Lavell clarifies that the figure 5,311 was the headcount as at the end of June 2006.  It also clarifies that that figure was not included for the purpose of bringing within the 2006 Industrial Agreement all persons employed as at the end of June 2006 (indeed some of those included in the headcount could not be subject to the Agreement e.g. the Commissioner) but simply as an estimate.  Such evidence does require that the Court discount the submission by counsel for the claimants that because the claimants were included in that headcount the 2006 Industrial Agreement therefore extended to them.

17       Read with the retrospectivity provisions (i.e. clause 4(2)), clause 1(4) simply confirms that as at 1 July 2006 there were approximately 5,311 employees who would be subject to the 2006 Industrial Agreement.

18       There is nothing in the 2006 Industrial Agreement to indicate that the definition of “employee” extends to those who were employed as at 1 July 2006 but ceased their employment prior to 18 December 2006.  If it were intended that the 2006 Industrial Agreement should be operative from the date of its registration (as per clause 4(1)) but should extend to persons who had been previously members of WAPOL then one would expect clause 5(1) and the definition of “employee” to expressly so provide.  Commonsense dictates that clause 5(1) (referred to later in these reasons) and the definition section be read in terms of applying to members as at 18 December 2006. 

Corlett’s Case

19       Counsel for the claimants relies on the decision of the Western Australian Industrial Appeal Court in Corlett (supra).  In that case the worker was employed from June 1974 until 30 August 1974.  On 4 October 1974 the award relating to her employment was amended; the effect of which was to increase the award rates of pay.  The effect of the amendment was ordered to take place from the first pay period commencing on or after 22 July 1974.  The worker sought back pay in relation to the difference between the amount she was paid and the increase applicable pursuant to the award for the pay days falling within the period 22 July to 30 August.  Counsel for the employer unsuccessfully submitted that the retrospective amendment only applied to workers who were still employed at the date the order was made.

20       At the time section 92(2)(aa) of the Industrial Arbitration Act 1912-1973 empowered the Commission to give such retrospective effect to the whole or any part of an award as the Commission may consider equitable.  Section 85 of that Act provided that “an award while it is in force is binding (a) on all workers employed in the calling or callings mentioned therein in the industry to which the award relates; and (b) on all employers employing those workers”.  The learned magistrate concluded that those sections operate “on a contract of employment which was quite ‘alive’ at the time the retrospective operation is expressed to take effect, despite any interim termination of a contract before the formal pronouncement of retrospectivity.  The contract of service existed and the retrospective provisions attached an award to it”.  That decision was appealed.  Each of the members of the Industrial Appeal Court dismissed the appeal.  Wickham J observed at page 645:

The submission that there was no relationship of employer and worker at the date when the award was in force simply denies its provision that it shall take effect as from the first pay period commencing on or after 22nd July 1974.  There was a relevant contract of employment existing at that moment and (the worker) was entitled to be paid in accordance with the terms of that contract and in accordance with the award made applicable to it by the retrospective order.  Because of that retrospective order the award took effect and therefore was in force at the relevant date.  It was in the terms of s. 85 binding on the appellant who was then an employer employing (the worker).

21       Counsel for the respondent submits that there is a fundamental difference between awards and industrial agreements with respect to retrospectivity and therefore that Corlett has no applicability in this case.

22       In relation to awards the Commission has the power to give retrospective effect to the whole or any part of the award – section 39(3).

23       An agreement between parties can only become an Industrial Agreement upon registration by the Commission.  Once the parties have reached an agreement (which may include a provision for retrospectivity of certain payments) and made application for registration, the Commission must register the agreement and may only require variation of it to clarify the true intention of the parties – section 41.

24       Counsel for the respondent submits that the Commission itself has no power to order that an Industrial Agreement apply retrospectively.  This is of course correct.  Counsel for the respondent has referred to certain observations made by the Western Australian Industrial Appeal Court in Department of Community Services & Os v Civil Service Association 74 WAIG 1709 where it was stated per Franklyn J at page 1712:

There is nothing in the Act which authorises or permits the Commission to order that an agreement registered as an industrial agreement have effect from a date earlier than the date of registration.  By definition (see s7) an agreement only becomes an “industrial agreement” when registered as such.  The Act gives effect only to the provisions of an “industrial agreement”.  To order that on registration it have effect from a date prior to its registration is to purport to give effect to it as an industrial agreement over a period of time when it was not in fact such.  That in my opinion, is clearly contrary to the provisions of ss7 and 41.  In my opinion, the industrial agreement took effect as such only from the date of its registration.

25       and also in Director General of the Ministry for Culture and the Arts v Civil Service Association & Os 80 WAIG 453 where at paragraph [38] on page 456 it was said per Anderson J:

In this connection, of course, a distinction may be made between what the parties have agreed to and what the Commission may order. To say that the Commission has no power to order that an industrial agreement should commence from a date earlier than the date on which the agreement came into existence is not to say that an industrial agreement may not have any retroactivity. It might well be possible for parties to agree that certain entitlements are to begin from some earlier date. That agreement will not have effect until it is registered and then only from the date of registration and in that sense it does not commence to operate until registered; but, arguably, once it becomes effective, the parties are bound by its terms, including those terms which impose obligations and confer rights of a retrospective nature. I would not wish to be taken as deciding this point, but raise it only to say that it is not the issue in the case under consideration.

26       The submissions of counsel for the respondent elicited a submission from counsel for the claimants that this Court has no jurisdiction to consider the validity of any action taken by the Commission.  This submission is of course correct (see Paul Andrew Bennett and Craig Bradley Dix t/a Finesse Painting and Property Maintenance v Murray Ross Higgins 85 WAIG 1456 at 1458 and Jodi Ann Hoffmann v Western Australian Aboriginal Media Association (Aboriginal Corporation) 80 WAIG 5182).  However, I do not understand counsel for the respondent’s submission as an invitation to this Court to examine the validity of the Commission’s decision to register the 2006 Industrial Agreement.  It seems to me that the confined point to be made with respect to the applicability of Corlett is that there is a distinction between the terms of the amendment to the award as made by the Commission in October 1974 and the terms of the 2006 Industrial Agreement registered by the relevant parties on 18 December 2006.  In Corlett the worker was covered by Award No 35 of 1963.  That award was amended in effect from 22 July 1974.  The amendment itself had been given “true retrospective operation (such that) the wage rates during (the) period (from 22 July 1974) were the rates set out in the amending order” (Burt CJ at page 645).  The wording of the amending order was that the amendment “shall take effect in respect of the (relevant) rates . . . as from . . . 22 July 1974”.  The terms of the 2006 Industrial Agreement provide that the operative date of the Agreement is its date of registration.  Retrospectivity is as provided for in clause 4(2), i.e. payment to “employees”.  “Employee” is of course defined in the Agreement as previously discussed.  In Corlett the award that actually applied to the worker when she was working was amended retrospectively.  Here the Agreement that actually applied (the 2003 Industrial Agreement) was not amended but was replaced by a renegotiated Agreement which made specific provision as to its date of operation and retrospective payment of salary and allowances.

27       The 2006 Industrial Agreement stipulates in clause 5. “Area and Scope”:

(1) This Agreement shall extend to and bind to all Members of the Western Australia Police Force and Aboriginal Police Liaison Officers appointed under the provisions of the Police Act 1892, except those whose salaries are recommended or determined pursuant to the Salaries Allowances Act 1975 and the employer.

28       As with the definition of “employee”, commonsense dictates that the members and officers referred to be those appointed as at the date of registration, rather than all members and officers appointed since the commencement of the Police Act 1892.  Such an interpretation is reinforced by section 41(4) of the Act, which provides:

(4)    An industrial agreement extends to and binds — 

(a) all employees who are employed — 

(i) in any calling mentioned in the industrial agreement in the industry or industries to which the industrial agreement applies; and

(ii) by an employer who is — 

(I)       a party to the industrial agreement; or

(II)     a member of an organisation of employers that is a party to the industrial agreement or that is a member of an association of employers that is a party to the industrial agreement;

and

(b) all employers referred to in paragraph (a)(ii),

and no other employee or employer, and its scope shall be expressly so limited in the industrial agreement.

Conclusion

29       The claimants have sought to establish that the retrospectivity provision in clause 4(2) of the 2006 Industrial Agreement extended to them.  In doing so, particular reliance was placed on the terms of the Agreement itself (in particular clauses 1(4) and 4(2)) and the Corlett decision.

30       The respondent defended each of the claims on the basis that the 2006 Industrial Agreement was registered after the resignation of each of the claimants.  In doing so, reliance was placed on the provisions of section 41 of the Act and the terms of the Agreement itself (in particular clause 4 and the definition of “employee” in clause 6).

31       I am not persuaded by the submissions made on behalf of the claimants.  The inclusion of the figure of 5,311 in clause 1(4) was clearly an estimate and cannot found a conclusion that clause 4(2) extends to all officers actually employed as 1 July 2006.  The Corlett decision, which relates to the application of retrospective amendments to an award, is of no particular assistance in interpreting the provisions of the 2006 Industrial Agreement.

32       The retrospectivity provided for by clause 4(2) of the Agreement clearly extends only to those caught by the definition of “employee” as at the date of registration of the 2006 Industrial Agreement.  The provisions of the Agreement itself, read together with section 41 of the Act, (along with notions of commonsense) indicate that there can be no provision in the Agreement for members and officers who had ceased their employment prior to 18 December 2006.

33       In each case, the claim will be dismissed.

PM Hogan

Industrial Magistrate