DISPUTE RE UNION MEMBERS PERSONAL LEAVE ENTITLEMENTS

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2018 WAIRC 00414

DELIVERED : THURSday, 12  JULy 2018

FILE NO. : PSACR 5 OF 2018

Applicant

AND

Commissioner of Police, WA Police Service

Respondent

Catchwords : Industrial Law (WA) – Dispute regarding union members personal leave entitlements – Interaction of Public Service and Government Officers CSA General Agreement 2017, Administrative Instruction 601 and HR – 11.05 Retirement on the Grounds of Ill Health,  Police staff Policy – Whether Commissioner of Police entitled to direct applicant to take unpaid personal leave based on medical report - Whether applicant entitled to remuneration for entire duration of directed leave - Principles applied - Commissioner of Police entitled to direct applicant to take personal leave –  Applicant not entitled to remuneration prior to disputed medical reports being received - Application dismissed.

Legislation : Industrial Relations Act 1979 (WA), s 44(9)

  Administrative Instruction 601, cl’s 1, 6

  Public Sector Management Act 1994 (WA), ss 22A, 39, 64(1), 108, Sch 5 cl 5

  Public Service and Government Officers CSA General Agreement 2017, cl’s 5, 22.24, 22.25, 22.26, 22.27, 22.28 22.33, 22.36, 52, 52.3

  Public Service Award 1992 (WA), ss 23(9), 25(8), 26(4)

  Public Service Regulations 1988 (WA)       

Result :        Application dismissed

Representation:

Counsel:

Applicant : Mr B Cusack

Respondent : Mr A Chapple and with him Ms N Pyne

Case(s) referred to in reasons:

Amcor Ltd v Construction, Forestry, Mining & Energy Union [2005] HCA 10; (2005) 222 CLR 241

Automatic Fire Sprinklers v Watson (1946) 72 CLR 435

City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337

Director General, Department of Education v United Voice WA [2013] WASCA 287

Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640

George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498

Kidd v The State of Western Australia [2014] WASC 99

Martin Fedec v The Minister for Corrective Services [2017] WAIRC 00828; (2017) 97 WAIG 1595

McCourt v Cranston [2012] WASCA 60

Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451

Peninsula Group Ltd v Kintsu Co Ltd (1988) 44 NSWLR 534

Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd [2014] WASCA 28

Red Hill Iron Ltd v API Management Pty Ltd [2012] WASC 323

Re Harrison; Ex parte Hames [2015] WASC 247

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165

Case(s) also cited:

Robe River Iron Associates v Amalgamated Metal Workers’ and Shipwrights’ Union (1987) 67 WAIG 1097

Reasons for Decision

1         This matter was referred for hearing and determination under s 44(9) of the Industrial Relations Act 1979. The dispute between the parties relates to a member of the Union, Ms Richardson, who is employed by the Commissioner of Police as a Fingerprint Processing Officer, which is a Level 2 position in the Forensic Fingerprint Bureau.

2         Ms Richardson suffered significant periods of ill health beginning in April 2017. She used all her accrued paid personal leave under the Public Service and Government Officers CSA General Agreement 2017 (the Agreement) by 7 December 2017. There was a further dispute between the parties as to whether, as a result of various medical reports regarding Ms Richardson’s state of health, she should be called upon to retire under s 39 of the Public Sector Management Act 1994 (WA) (PSM Act). That dispute has now been resolved and Ms Richardson returned to full time employment in her position with the Commissioner of Police on 11 May 2018.

3         However, as Ms Richardson was directed by the Commissioner of Police to proceed on unpaid personal leave from 22 December 2017 up to and including 31 January 2018, a dispute remains as to the Commissioner of Police’s direction to Ms Richardson that she be on unpaid personal leave and what should occur, if anything, in relation to relevant entitlements over this period.

4         In short, whilst both parties provided quite detailed written outlines of submissions, the Union’s contention was that it was not open to the Commissioner of Police to unilaterally require Ms Richardson to proceed on unpaid personal leave. This was said to be contrary to the terms of both the Agreement and the employer’s own policy entitled “HR – 11.05 Retirement on the Grounds of Ill Health – Police Staff”.

5         On the other hand, again in short, the Commissioner of Police maintained that at all material times it has acted in accordance with the terms of its obligations under the Agreement, the relevant policies and Administrative Instruction 601 (AI 601) dealing with sick leave. The latter instrument was made under the repealed Public Service Act 1978 (WA) which, by Schedule 5 of the PSM Act, continues in force and effect.

6         The Union seeks orders that the Commissioner of Police’s decision in these matters be reversed.

Factual background

7         The parties have agreed on a statement of facts. It is convenient to set it out at this point and it is as follows:

1. The Applicant's member, Ms Tara-Jayne Richardson, is employed by the Respondent in the position of Fingerprint Processing Officer, an unsworn position.

2. The Public Service Award 1992 (the Award) and the Public Service and Government Officers CSA General Agreement 2017 (the General Agreement) apply to the employment of Ms Richardson.

3. The Respondent's policy, HR-11.05 Retirement on the Grounds of Ill Health - Police Staff (the Ill Health Policy), applies to Ms Richardson within the scope of that policy.

4. Ms Richardson commenced employment with the Respondent on 11 April 2011.

5. Ms Richardson has had a series of health issues that have resulted in her having significant absences from work on Personal Leave and other forms of leave from April 2017.

6. On 29th November 2017, at the instruction of the Respondent, Ms Richardson undertook a medical assessment with WA Police Consultant Occupational Physician Dr Karina Powers.

7. At this assessment Dr Powers verbally advised Ms Richardson that her assessment would recommend to the Respondent that retirement on the grounds of ill health should be considered.

8. Dr Powers' written report from the 29 November 2017 assessment was provided to Ms Richardson's treating doctor shortly thereafter.

9. On 6th December 2017 Ms Richardson met with Dr Powers and Ms Michelle Bryant, a Vocational Rehabilitation Consultant employed by the Respondent, to discuss the retirement on the grounds of ill health processes.  Dr Powers also produced a supplementary medical report on this date.

10. On 7th December 2017 Ms Richardson obtained a medical certificate from Dr Hui Tan, General Practitioner, which indicated that Ms Richardson was fit to resume her normal full -time duties with immediate effect.

11. On 13th December 2017 Dr Powers wrote a supplementary medical report which again recommended that retirement on the grounds of ill health (medical retirement) be considered.

12. On 14th December 2017 Dr Robert Liddell, General Practitioner, wrote to Ms Bryant stating that he was opposed to any consideration of medical retirement for Ms Richardson, and set out his reasons.

13. On 22nd December 2017 Senior Sergeant Chris Hoath from the Respondent's Forensic Fingerprint Bureau wrote to Ms Richardson informing her that Dr Powers had assessed her as being unfit for work and offered the opinion that medical retirement be considered for Ms Richardson.

14. The letter of Senior Sergeant Hoath also stated “ ... you are to be placed on personal (sick) leave effective immediately”.

15. On 8th January 2018 Ms Renae Lavell, the Respondent's Director Human Resources, wrote to Ms Richardson and called upon her to retire on the grounds of ill-health.  The letter instructed Ms Richardson to advise Ms Lavell, in writing within 7 days, whether Ms Richardson accepted or rejected the call to retire, and 28 days from the date of receipt of the letter to provide her own medical evidence in the event that she did not accept the Respondent's medical evidence.

16. On 15th January 2018 Ms Richardson wrote to Ms Nerroli Pyne, the Respondent's Acting Senior Employee Relations Officer, advising her that Ms Richardson rejected the call to retire on medical grounds, and advising that she would provide her own medical evidence.

17. On 19th January 2018 the Applicant wrote to Ms Lavell to re-iterate that Ms Richardson rejected the medical evidence and informed her that Ms Richardson had arranged an appointment with Dr Brian Dare, Occupational Physician for 23rd January 2018.

18. The letter to Ms Lavell dated 19th January 2018 also initiated the Dispute Settlement Procedure set out in Clause 52 of the General Agreement in respect to the decision of the Respondent to 'place' Ms Richardson on Personal Leave.

19. On 29th January 2018, Ms Pyne sent an e-mail to the Applicant which responded to the letter dated 19th January 2018.  That e-mail stated, inter alia, that the Respondent maintains the position that Ms Richardson remains on Personal Leave while further medical considerations occur.

20. On 31st January 2018 the Applicant wrote to Ms Lavell to escalate the Dispute in accordance with sub-clause 52.3 of the General Agreement.  Attached to that letter was a copy of the report by Dr Dare dated 24th January 2018 in which he concluded that Ms Richardson was fit to perform her full duties and that there were no grounds for retirement on the grounds of ill-health.

21. At 9:26am on 7th February 2018 the Applicant sent an e-mail to Ms Pyne containing a copy of a further letter to Ms Lavell.  That letter noted that the Dispute was not resolved and sought to escalate the Dispute in accordance with sub-clause 52.4 of the Agreement.

22. At 4:02pm on 7th February 2018 Ms Pyne sent an e-mail to the Applicant responding to the letters dated 31st January 2018 and 7th February 2018.  The e-mail advised that the Respondent would reinstate the payment of Ms Richardson's salary effective from 31st January 2018, being the date that Dr Dare's report was provided to the Respondent.  The e-mail did not indicate agreement to reinstate Ms Richardson's salary for the period between 7th December 2017 and 31st January 2018.  Ms Pyne further advised that as there was now a dispute about the medical assessment, the Respondent would now seek a further report from an independent medical expert in accordance with the Ill Health Policy.

23. On 12th February 2018 the Applicant sent an e-mail to Ms Pyne raising the issue of the effect of the Respondent's Ill Health Policy on the situation subject to the Dispute.

24. On 14th February 2018 Ms Pyne responded to the e-mail dated 12th February 2018 advising that the Respondent does not agree with the Applicant's interpretation of the Agreement provisions and does not propose to change its position.

25. On 16th February 2018 the Applicant filed Application PSAC 5 of 2018.

26. On 11th April 2018 Ms Richardson attended a medical assessment with independent Consultant Occupational Physician Dr Phillip Meyerkort.

27. On 30th April 2018 the Respondent received and provided the Applicant with Dr Meyerkort's independent report (dated 26th April 2018) of his assessment of Ms Richardson.  Dr Meyerkort's report concludes that Ms Richardson is fit to perform the full range of duties within her position description on a full time basis without restriction.

28. Ms Richardson returned to the workplace in a full-time capacity on 11th May 2018.

29. Clause 22.33 of the General Agreement provides an ability for the Respondent to seek a medical report if the Respondent has reason to believe that an employee is in such a state of health as to render a danger to themselves, fellow employees or the public.

30. The Respondent is entitled to act upon medical evidence, which may involve directing the employee to not attend the workplace.

31. The provisions, and any associated entitlements, upon which the employee is directed to not attend the workplace is the central issue of dispute between the Applicant and the Respondent.

8         Additionally, Ms Richardson gave some brief evidence that she did not wish to take personal leave when directed by the Commissioner of Police over the period 22 December 2017 up to and including 31 January 2018. Furthermore, Ms Richardson maintained that it was her opinion, and that of her treating doctors, that she was fit for work over this time.

The issue in dispute

9         It was common ground between the parties that the question to be determined in these proceedings is whether the Commissioner of Police was correct to act as it did by directing Ms Richardson to proceed on unpaid personal leave, having regard to the relevant provisions of the Agreement, the Commissioner of Police’s policies and the terms of AI 601.

Consideration

The Agreement

10      The first point to be considered is whether the terms of the Agreement in relation to personal leave supported the Commissioner of Police’s decision in relation to Ms Richardson. This is relevant because as noted above, on 22 December 2017 the Commissioner of Police, by letter from Senior Sergeant Hoath of the Forensic Fingerprint Bureau, informed Ms Richardson that based on advice from the Commissioner of Police’s human resources staff, Ms Richardson, due to the health risks of her remaining in the workplace, was “to be placed on personal (sick) leave effective immediately”. Ms Richardson was directed not to attend work, unless informed otherwise. The letter from Senior Sergeant Hoath went on to say “You remain able to access any relevant leave entitlements available to you in line with [sic] the Public Service and Government Officers CSA General Agreement 2017 and the Public Service Award 1992 …”  As Ms Richardson did not have any paid leave available, she was effectively on unpaid leave from 22 December 2017.

11      The Agreement deals with sick leave entitlements in the personal leave clause.  It is contained in Part 5: Leave, and is a lengthy clause. This clause replaced the Short Leave, Carers’ Leave and Sick Leave provisions of the Award, and combined them into one entitlement as “Personal Leave”. Each year an employee receives personal leave “credits”. Relevantly for present purposes, is that part of the clause headed “Application for Personal Leave” which is in the following terms:

22.24 Reasonable and legitimate requests for personal leave will be approved subject to available credits. Subject to clause 22.8 the Employer may grant personal leave in the following circumstances:

(a) where the Employee is ill or injured;

(b) to provide care or support to a member of the Employee's family or household who requires care or support because of an illness or injury to the member; or an unexpected emergency affecting the member;

(c) for unanticipated matters of a compassionate or pressing nature which arise without notice and require immediate attention;

(d) by prior approval of the Employer having regard for Agency requirements and the needs of the Employee, planned matters where arrangements cannot be organised outside of normal working hours or be accommodated by the utilisation of flexi time credits by Employees working according to approved flexible working hours arrangements or other leave. Planned personal leave will not be approved for regular ongoing situations.

22.25 An Employer may grant two days unpaid personal leave per occasion to an Employee to provide care and support to a member of the Employee's family or household due to the birth of a child to the member. This entitlement does not of itself limit an Employee's access to paid personal leave as provided by clause 22.24 or partner leave as provided for by clause 28 - Partner Leave of this General Agreement. This leave may also be substituted with accrued annual leave, long service leave, time off in lieu of overtime, flexi leave and/or banked hours to which the Employee is entitled.

22.26 Employees must complete the necessary application and clearly identify which of the above circumstances apply to their personal leave request.

22.27 The definition of family shall be the definition contained in the Equal Opportunity Act 1984 for "relative". That is, a person who is related to the Employee by blood, marriage, affinity or adoption and includes a person who is wholly or mainly dependent on, or is a member of the household of, the Employee.

22.28 Where practicable, the Employee must give reasonable notice prior to taking leave. Where prior notice cannot be given, notice must be provided as early as possible on the day of absence. Where possible, an estimate of the period of absence from work shall be provided.

12      Clauses 22.33 and 22.36 are also relevant, they provide:

22.33 If the Employer has reason to believe that an Employee is in such a state of health as to render a danger to themselves, fellow Employees or the public, the Employee may be required to obtain and furnish a report as to the Employee's condition from a registered medical practitioner nominated by the Employer. The Employer shall pay the fee for any such examination.

…

22.36 Employees who have exhausted all of their personal leave entitlements and are ill or injured may apply for personal leave without pay. Employees are required to complete the necessary application and provide evidence to satisfy a reasonable person. The Employer shall not unreasonably withhold this leave.

13      To the extent that cl 22.33 is inconsistent with cl 26(4) of the Award, insofar as the latter does not include reference to an officer being a danger to themselves, cl 22.33 of the Agreement prevails.

14      The Union made several submissions. It was contended that these provisions of the Agreement do not contemplate that the employer may initiate a period of personal leave on behalf of an employee. It was submitted that the plain language of the provisions, in cl 22.24 and cl 22.26, make it clear that personal leave is at the initiative of the employee and the employee must satisfy certain requirements to establish the entitlement, including that the employee must make an application for sick leave. It was contended that if the Agreement was to enable the employer to place an employee on personal leave at its initiative, then the language of the clause would have made this clear.

15      Furthermore, whilst it was accepted by the Union that cl 22.33 enables the employer to require an employee to obtain a medical report, it does not then provide the ability of the employer to direct an employee to proceed on sick leave. The Union contrasted the terms of the Agreement with the Award in relation to both annual leave and long service leave. The latter contains express provisions enabling an employer to direct an employee to take leave and the dates on which such leave is to commence.

16      Thus, the Union did not dispute the Commissioner of Police’s capacity to direct an employee, in accordance with cl 22.33 of the Agreement, to obtain a medical report if the circumstances of this clause had application. Also, it appeared to not be disputed that the Commissioner of Police may act upon such a medical report and to direct an employee to remain away from the workplace. What the employer could not do, however, is to deem such absence as sick leave.

17      As to the terms of cl 22.33, it was the Commissioner of Police’s contention that if a medical report does satisfy the requirements of the subclause, then he would be obliged to act to require an employee to not attend the workplace, in accordance with his common law and statutory duty in relation to the health and safety of the employee concerned and other employees.

18      The approach to the interpretation of industrial instruments, such as awards and industrial agreements, is well settled in this jurisdiction. These principles were recently set out by the Full Bench in Martin Fedec v The Minister for Corrective Services [2017] WAIRC 00828; (2017) 97 WAIG 1595. In this case Smith AP and Scott CC observed at pars 21-23 as follows:

21 The approach that is to be applied when interpreting an industrial agreement is well established. This is:

(a) Industrial agreements are usually not drafted with careful attention to form by persons who are experienced in drafting documents that have legal effect.

(b) The task of construction of an industrial agreement is to be approached in a way that allows for a generous construction: City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362.

(c) Industrial agreements are made for industries in light of the customs and working conditions of each industry and must not be interpreted in a vacuum divorced from industrial realities: George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498; City of Wanneroo v Holmes (378 - 379) (French J).

22 The general principles that apply to the construction of contracts and other instruments also apply to the construction of an industrial agreement. In Re Harrison; Ex parte Hames [2015] WASC 247, Beech J said [50] - [51]:

The general principles relevant to the proper construction of instruments are well-known. In summary:

(1) the primary duty of the court in construing an instrument is to endeavour to discover the intention of the parties as embodied in the words they have used in the instrument;

(2) it is the objectively ascertained intention of the parties, as it is expressed in the instrument, that matters; not the parties' subjective intentions. The meaning of the terms of an instrument is to be determined by what a reasonable person would have understood the terms to mean;

(3) the objectively ascertained purpose and objective of the transaction that is the subject of a commercial instrument may be taken into account in construing that instrument. This may invite attention to the genesis of the transaction, its background and context;

(4) the apparent purpose or object of the relevant transaction can be inferred from the express and implied terms of the instrument, and from any admissible evidence of surrounding circumstances;

(5) an instrument should be construed so as to avoid it making commercial nonsense or giving rise to commercial inconvenience. However, it must be borne in mind that business common sense may be a topic on which minds may differ; and

(6) an instrument should be construed as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed so as to have some operation (Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 [35] (French CJ, Hayne, Crennan & Kiefel JJ); Kidd v The State of Western Australia [2014] WASC 99 [122]; Red Hill Iron Ltd v API Management Pty Ltd [2012] WASC 323 [106] - [112]; Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd [2014] WASCA 28 [55] (Martin CJ, Pullin & Murphy JJA agreeing)).

These general principles apply in the construction of an industrial agreement (Director General, Department of Education v United Voice WA [2013] WASCA 287 [18] - [20] (Pullin J, Le Miere J agreeing), [83] (Buss J)). The industrial character and purpose of an industrial agreement is part of the context in which it is to be construed (Amcor Ltd v Construction, Forestry, Mining & Energy Union [2005] HCA 10; (2005) 222 CLR 241 [2] (Gleeson CJ and McHugh J); Director General v United Voice [81]; see also Amcor v CFMEU 66 (Kirby J), 129 - 130 (Callinan J)).

23 To these principles, the following observations made by Pullin J in Director General, Department of Education v United Voice WA [2013] WASCA 287; (2013) 94 WAIG 1 [18] - [19] should be added:

The Agreement has to be construed to determine what the intention of the parties was at the time the Agreement was entered into. This has to be determined by ascertaining what a reasonable person would have understood the words of the Agreement to mean taking into account the text, the surrounding circumstances known to the parties and the purpose and object of the transaction: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 [40]; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 [22]. Surrounding circumstances may only be taken into account if the ordinary meaning of the words used by the parties is ambiguous or susceptible of more than one meaning: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337, 352; McCourt v Cranston [2012] WASCA 60 [23].

19      In the application of these principles to the relevant provisions of the Agreement set out above, in the context of the terms of the Agreement when read as a whole, I prefer the contentions advanced by the Union as to interpretation to those advanced by the Commissioner of Police. In my view, the provisions of the Agreement as to personal leave do not enable an employer to “place” or to direct an employee to proceed on personal leave. To do so would require express provision which is absent.  Even in cases where an employee has exhausted his or her entitlement to paid leave, by cl 22.36, the employee may apply to the employer for personal leave without pay. Again, nothing on the ordinary and natural meaning of the provisions in cl 22, taken on their own, empowers the employer to unilaterally place or to direct an employee to take personal leave without pay.

20      As noted by the Union in its submissions, the terms of the personal leave clause in the Agreement stand in contrast to the provisions of the Award, which is to be read in conjunction with the terms of the Agreement in relation to annual leave and long service leave. By cl 23(9) of the Award, in the case of accrued annual leave, the employer has the right to direct an employee to take accrued annual leave and to specify the date on which such leave is to commence.  The failure by an employee to comply with such a direction constitutes a disciplinary matter.  The same provision exists for long service leave in cl 25(8).

21      Given that by cl 5 of the Agreement the terms of the Agreement and the Award are to be read together, both form part of the scheme as to the terms and conditions of employment for public servants in this State. The presence of an express right of an employer to direct an employee to take annual leave and long service leave, with the sanction of disciplinary action if not complied with, reinforces in my view, the need for a corresponding express provision in either the Agreement or the Award, or other instrument, for an employer to direct an employee to take personal leave.

22      The Commissioner of Police contended that the fact that an employer may direct an employee to obtain a medical report from a medical practitioner under cl 22.33, if the conditions of this subclause were satisfied, means that the employer must be able to act upon it. It was submitted that because this provision is in the personal leave clause of the Agreement, this must mean as a matter of logic, that the employer is able to take steps to invoke the personal leave clause, because nothing in the clause provides that it may not do so. In my view, it is a large step to read into the Agreement a right of the employer of this kind, not conferred by the express language of its terms. There is no ambiguity in the language of cl 22. Even adopting the most generous approach to the interpretation of the terms of the Agreement, it is a step too far to construe its terms as contended by the Commissioner of Police.

23      Whilst the Commissioner of Police made much of the fact that as a matter of logic and common sense, the obtaining of a medical report under cl 22.33 of the Agreement must be able to be acted upon, the absence of a right of the employer to place an employee on sick leave by the terms of the Agreement itself, does not mean the employer may not take steps. The facts of this case show that the employer may use the report to, for example, require a public service officer to retire on the grounds of ill health under s 39 of the PSM Act or act in accordance with AI 601, which I will turn to consider now. 

24      I am not therefore persuaded that the terms of the Agreement by itself, enabled the Commissioner of Police to direct or place Ms Richardson on sick leave.

AI 601

25      It was not in dispute and the parties accepted that this Administrative Instruction remains in effect. Having regard to cl 5 of Schedule 5 of the PSM Act, I consider this position to be correct. The relevant part of AI 601 is cl 6 which provides as follows:

6. Officer Considered to be a Danger to Others

a) Where a chief executive officer has reason to believe that an officer is in such state of health as to be or to become a danger to colleagues or members of the public, the chief executive officer shall, in accordance with Award provisions, require the officer to obtain and provide a report as to his/her condition from a registered medical practitioner, or by a registered medical practitioner nominated by the chief executive officer. The fee for any such examination shall be paid by the department.

b) Upon receipt of the medical report, the chief executive officer may direct the officer to be absent from duty for a specified period, or if already absent on leave, the officer may be directed to continue on leave for a specified period. Such absence shall be regarded as sick leave.

26      Whilst this provision is in similar terms to cl 22.33 of the Agreement, with one qualification, which I will deal with below, unlike cl 22.33 of the Agreement, it expressly empowers an employer to direct an employee to be absent from duty and such absence to be regarded as sick leave.

27      The Union disputed the Commissioner of Police could rely on this instrument in Ms Richardson’s case. It submitted that cl 6(a) of AI 601 only extends to situations where the medical report supports the conclusion that an employee’s ill health poses a danger to colleagues or the public, and does not extend to a risk to the health of the employee concerned. Based upon the letter from Senior Sergeant Hoath directing Ms Richardson to commence leave and the medical reports of Dr Powers, the Union submitted that the medical reports only identify the risks to the health of Ms Richardson by her remaining in the workplace. They do not identify any risks posed by her presence in the workplace to her colleagues or members of the public.

28      Therefore, on this basis, the Union submitted that the Commissioner of Police could not rely upon cl 6 of AI 601 in this case.

29      The Union further contended that there was, in any event, a conflict between the terms of the Agreement and AI 601. The Union referred to s 64(1) of the PSM Act, which provides that employment of a person in accordance with Commissioner’s Instructions as a public service officer is subject to any binding award, order or industrial agreement made under the Act. Any conflict must be resolved in favour of the Agreement. This was based on the contention that as a transitional instrument continued by the PSM Act, AI 601 should be regarded as having the same character as a Commissioner’s Instruction. Thus, to the extent that AI 601 purported to allow an employer to direct the taking of sick leave, such a direction would conflict with the Agreement and not be valid.  Alternatively, it was further submitted that the terms of the Agreement, being a later expression of the relevant law in relation to personal leave than AI 601, should prevail.

30      On the other hand, the Commissioner of Police submitted that the terms of cl 22.33 of the Agreement essentially replicate the terms of cl 6(a) of AI 601.  The only difference being that AI 601 does not provide a right for the employer to direct an employee to obtain a medical report in circumstances where the employer’s concern relates to the employee being or becoming a danger to themselves. Despite this, the Commissioner of Police submitted that the terms of AI 601 should be construed as if it did apply to this circumstance. It was contended that it would be nonsensical to effectively create a two-tiered approach to these matters, depending on whether the employee’s ill health is such as to constitute a danger to work colleagues or the public generally on the one hand, or only to themselves, on the other.

31      Furthermore, the Commissioner of Police contended that contrary to the submission of the Union, there was no conflict between the terms of cl 22.33 of the Agreement and AI 601, because the former is silent as to what steps the employer may take, having obtained a medical report from an employee at the employer’s direction.

32      For the purposes of s 64 of the PSM Act, Administrative Instructions are not Commissioner’s Instructions as made under s 22A of the PSM Act. However, Commissioner’s Instructions were plainly intended to replace Administrative Instructions as instruments issued by the Public Sector Commissioner to manage the public service under the PSM Act. Therefore, I consider that s 64(1) of the PSM Act should be construed as a reference to both Commissioner’s Instructions and Administrative Instructions, as both instruments have the same character and effect. Thus, any inconsistency between a prior Administrative Instruction made under the former public service legislation and preserved by the PSM Act, must give way to the terms of any award or agreement made under the Act. 

33      From the material before me, AI 601 was made in March 1993. It appears to have been last reviewed in September 2012. In clause 1, reference is made to the terms of the Public Service Regulations 1988 (now repealed) and the Public Service Award 1992. From their terms, both AI 601 and the Award in relation to sick leave, were plainly intended to be read together and to operate as part of a scheme. Clause 6(b) of AI 601 refers to the ability of a CEO of a government department or agency to direct an employee to obtain a medical report, if the circumstances set out in cl 6(a) are in existence.

34      Both the terms of cl 26(4) of the Award and cl 6 of AI 601 were intended to operate and be read together in a complementary fashion. Both covered the circumstances of an employee being in such a state of ill health as to render themselves a danger to fellow officers and the public at large. Both refer to the employer’s right to direct the employee to obtain a medical report. AI 601 in cl 6(b) however, goes a step further. Whilst not expressed as such, cl 6(b) must be construed as meaning if cl 6(a) is satisfied, a CEO has the authority to direct an employee to remain away from the workplace and such absence is to be regarded as sick leave. The entitlement to sick leave of course, was derived from the Award and not AI 601. This reinforces the point that both instruments were intended to operate as part of a scheme in relation to illness and sick leave.  

35      The question which arises for consideration therefore is what impact did the making of the Agreement as to personal leave and its predecessors, have on the intended operation of this prior scheme? The only change introduced by the Agreement in cl 22.33 compared to the provisions of the Award and of AI 601, which are both of very long standing, is to enable the employer to direct a medical report to be obtained in circumstances where the employer considers the employee’s state of ill health to be a danger to themselves, in addition to any danger to fellow employees or the public. The form of the provision now found in cl 22.33 of the Agreement, with the additional words in it, seems to have been in successive industrial agreements since at least 2006, if not earlier.

36      As a matter of common sense and logic, it is highly likely that if someone is so ill as to constitute a danger to fellow employees or the public, their own well being would be placed at risk. It is difficult to imagine a situation where this would not be so.

37      Construed in accordance with their tenor, it appears that both the Award, the AI 601 provisions and cl 22.33 of the Agreement, are directed towards the purpose of discharging the employer’s duty of care to its employees and to the public at large. If this is correct, and I consider that it must be, is it consistent with such a purpose or object for the employer not to be able to avail itself of this approach if the medical evidence of an employee’s state of ill health shows them to be a danger to themselves?  I do not think that it is.

38      Whilst it is not clear, it may well be that the parties to the Agreement in cl 22.33 added the words to the clause covering the circumstance where an employee may be a danger to themselves, in cases where an employee may have little or no public interaction or works largely unsupervised, for example, in a remote location. I say this because as I have already mentioned, the other two circumstances of danger, that is to fellow employees or the public at large, must axiomatically mean and include, that an employee would also be a danger to themselves. The serious nature of the state of ill health is underscored by reference to there being a “danger”. The ordinary and natural meaning of “danger” is “1. liability or exposure to harm, risk, peril (of one’s life, of death) or other evil…”: The Concise Oxford Dictionary. That is, in ordinary parlance, the situation must be serious and not trifling or minor.

39      When the terms of the Agreement and the Award are so construed, in my view the terms of AI 601 should be interpreted in accordance with the scheme as it was clearly intended to operate. By cl 5(1) of Schedule 5 to the PSM Act, the terms of AI 601 are preserved as a transitional instrument, until it is repealed by a Commissioner’s Instruction or by regulations under s 108 of the PSM Act. As I have already mentioned, it is common ground that Administrative instructions made under the former public service legislation were of the same general nature as Commissioner’s instructions now made under s 22A of the PSM Act. However, whilst under s 19 of the former Public Service Act 1978, the former Public Service Commissioner issued Administrative instructions for the “performance of his or her functions”, s 22A of the PSM Act is far more expansive. It expressly refers to the “management and administration of public sector bodies” and “human resources management”.

40      Importantly for present purposes, Administrative instructions, as continued in effect by cl 5(1), will continue to apply, subject to “such modifications as are necessary”. Phrases such as “with such modifications as are necessary” and “with such adaptations as are necessary” in legislation, extend beyond matters of mere nomenclature and description and may embrace substantive provisions:  Peninsula Group Ltd v Kintsu Co Ltd (1988) 44 NSWLR 534. The Parliament clearly contemplated by cl 5(1) of Schedule 5 to the PSM Act, that some modification to the preserved terms of AI 601 may be necessary. In my view, and particularly having regard to the broader scope of s 22A of the PSM Act, when compared to the former Public Service Act, this is such a circumstance.

41      Having regard to the previous discussion set out above and the evident purpose and intent of the terms of AI 601, when read with the relevant provisions of the Award and the Agreement, cl 6(a) of AI 601 should be read as modified by cl 22.33 of the Agreement, to include the situation where an employee is in such a state of ill health as to constitute a danger to themselves, as well as to fellow employees or the public. To so construe AI 601, would be to preserve and maintain the scheme initially established by the terms of the Award read with AI 601, as now extended by the terms of the Agreement and remain consistent with the discharge of the employer’s duty of care to its employees and the public, which was the scheme’s evident purpose. 

42      For this not to be so, there would be the odd result of a separate scheme applying to the circumstance where an employee’s ill health is regarded as a danger to fellow employees and the public, which has been the case for many years, to that where the evidence is that the employee’s ill health is only a danger to themselves. In my view such a distinction, given the clear purpose and object of the scheme, would lack common sense. I do not think that looking at the language of the instruments and construing their terms objectively, as a reasonable person in the position of the parties, it could have been intended that such a differential scheme was to apply. Put differently, by the simple inclusion in cl 22.33 of the Agreement and its predecessors, of additional reference to an employee’s state of ill health being a danger to themselves, which as I have said would logically apply in many cases anyway, I do not think it could  be concluded, from the perspective of reasonable person in the position of the parties at the time the Agreement was made, that the parties to the Agreement intended to create a new and separate entitlement for an employee in such cases, to continue to be paid their full remuneration, potentially for a lengthy period of time and not have to use their own sick leave entitlement, whilst under direction to remain away from the workplace. In my view, if this was the intended effect of such a relatively minor change to the clause, one would expect to see words inserted into the Agreement to make this clear.

The Policy

43      The next matter raised by the parties in their submissions was the effect of the Commissioner of Police’s policy in relation to retirement on the grounds of ill health. This policy is entitled “HR-11.05 Retirement on the Grounds of Ill Health - Police Staff”. The Policy seems to be comprised of three components: the “Policy”, “Procedures” and “Guidelines”. Under the first part, under the heading “Procedures”, WA Police may obtain a medical opinion where it has concerns about an employee’s state of ill health impacting on the performance of their duties or posing a risk to themselves or other staff. If the medical opinion supports the retirement of the employee on the grounds of ill health, WA Police may act under s 39 of the PSM Act. Where the employee disputes this assessment based on their own medical advice, the employee is to remain away from work on full pay. The provisions of the policy dealing with these matters are as follows:

• If the employee does not agree with the medical evidence, the employee may provide the agency with his or her own medical evidence. The medical evidence must be supplied within 28 days of being called upon to retire. Consideration may be given to extend the 28 day period upon application by the employee. If the employee’s own medical evidence contradicts the agency’s advice that the employee should retire on the grounds of ill health, a dispute will be recorded and the employee will be directed not to attend work. During this period the employee will remain on the same pay as they would have received had they not been directed to not attend work. The employee will not be required to attend work until revoked or until the medical advice supports the employee’s safe return to work.
• If a dispute arises regarding the advice as to whether an employee should retire on the grounds of ill health, both the agency and employee must agree to a medical report being sought from an independent medical expert. That report will be commissioned and paid for by WA Police. The employee must attend any medical appointment arranged as part of this process.

44      Under the heading “Guidelines” of the Policy there appear further provisions in similar terms to those set out above. Clauses 1 to 5 are in the following terms:

1. At any time should WA Police deem there is sufficient evidence to suggest that an employee’s sustained poor health poses a significant risk to the welfare of themselves and/or other staff, the agency may direct the employee not to attend work. During this period the employee will remain on the same pay as they would have received had they not been directed to not attend work. The employee will not be required to attend work until revoked or until the medical advice supports the employee’s safe return to work.
2. At any point in the process, an employee can be required to attend medical appointment(s).
3. If a dispute is recorded, the independent medical expert may require the employee to attend a medical examination. Should the employee not attend such an appointment without good cause, the independent medical expert will be required to provide a medical opinion on the information available at that time.
4. Ill health should not be used as the reason for offering voluntary severance. An offer of voluntary severance should only be considered when an employee’s office, post or position is, or is to be, abolished and the employee will become surplus to the requirements of WA Police.
5. The employee should be advised to seek advice from their superannuation fund and be given appropriate time to obtain that advice and to consider their intention to withdraw or progress any request related to ill health retirement. The agency will supply any information required to the appropriate superannuation fund if requested.                            

45      The Union relied on cl 1 of the Guidelines in support of its argument that the Commissioner of Police had acted contrary to its own policies in the case of Ms Richardson. It maintained that on this basis she should have continued to be paid over the period in dispute. On the other hand, the Commissioner of Police contended that it is clear from the terms of the Policy read as a whole, that it deals with retirement on the grounds of ill health and not just sick leave generally. In this case, when Ms Richardson disputed the assessment that she be considered for medical retirement, and provided her own medical report, in terms of the provisions set out above under “Procedures”, she was paid her remuneration from 31 January 2018 while the procedure was followed.

46      Whilst the terms of the Policy in relation to “Procedures” and “Guidelines” are somewhat confusing, I do not think the Policy assists the Union in this case. The relevant headings refer to “Retirement on the Grounds of Ill Health”. When the payment provision was triggered in this case, following the disputed medical reports being received, Ms Richardson was paid accordingly. I do not consider the Policy, construed as a whole in accordance with its evident intention, which it must be, supports the payment of Ms Richardson at any point prior to the dispute arsing on the medical reports.

Common law  

47      In the alternative, the parties made submissions about the impact of the “no work no pay” principle of the common law of employment, as established by the decision of the High Court in Automatic Fire Sprinklers v Watson (1946) 72 CLR 435. This case is authority for the common law principle that under contracts of employment, it is service that earns wages or salary. If a person is precluded from performing service, even by the wrongful act of an employer, the employee’s remedy is damages and there is no entitlement to be paid wages.

48      Given my conclusions above, it is unnecessary for me to reach any view about the application of this principle in this case.

Conclusion

49      Accordingly, I consider that it was open for the Commissioner of Police to rely upon the terms of the Agreement read with AI 601 in this case. The application for relief sought by the Union must be dismissed.