WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2019 WAIRC 00206

DELIVERED : Wednesday, 1 May 2019

FILE NO. : M 80 OF 2018

CLAIMANT

AND

Director General, Department of Justice

Respondent

CatchWords : INDUSTRIAL LAW (WA) – Alleged contravention of cl 37 of the Public Sector Award 1992 regarding non-payment of leave to attend and give evidence at an appeal before the Public Sector Appeal Board - Construction of cl 37(1)(a) – Meaning of ‘union business’ – Application of cl 37 – What leave is entitled to be paid under cl 37

Legislation : Industrial Relations Act 1979 (WA)
Public Service Management Act 1994 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)

Instrument : Public Service Award 1992

Case(s) referred to

in reasons : Fedec -v- The Minister for Corrective Services [2017] WAIRC

00828

Sammut v AVM Holdings Pty Ltd [No2] [2012] WASC 27

City of Wanneroo v Australian Municipal, Administrative, Clerical And Services Union [2006] FCA 813

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638

Result : Claim dismissed

Representation:

Claimant : Ms D. Larson (industrial officer)

Respondent : Mr D. Anderson (of counsel)

REASONS FOR DECISION

1         Kurt Mayerhofer is employed by the respondent as a senior youth justice officer in Geraldton. In 2016, his employer determined that he had committed a breach of discipline and recommended remedial action.

2         In August 2017, Mr Mayerhofer signed a notice of appeal appealing his employer’s determination and the remedial action to the Public Service Appeal Board (PSAB) (the Appeal). Mr Mayerhofer is a member of the claimant and applied for representation consistent with the claimant’s Rules1 which was subsequently granted.

3         On 31 October 2017, Mr Mayerhofer attended a direction’s hearing at the PSAB in person with his representative.2

4         On 14 December 2017, Mr Mayerhofer attended a direction’s hearing at the PSAB where he appeared by audio-link.3

5         The Appeal was originally listed for three days but was heard on 28 February 2018 and 1 March 2018. Mr Mayerhofer gave oral evidence at the Appeal and the respondent called witness evidence on its behalf.4

6         Before the Appeal was finally determined by the PSAB, Mr Mayerhofer and the respondent agreed an outcome by way of a deed of settlement.

7         Prior to the first direction’s hearing, Mr Mayerhofer applied for paid leave under cl 37 of the Public Service Award 1992 (the Award) which was refused by the respondent. The respondent required Mr Mayerhofer to avail himself of other personal leave to attend the direction’s hearing. Similarly, the respondent refused to pay leave under cl 37 of the Award in respect of attendance at the second direction’s hearing.5

8         Following the resolution of the Appeal, Mr Mayerhofer submitted a request for four days paid leave under cl 37 of the Award, which the respondent again refused.6

9         The claimant now applies for an order under s 83(4)(a)(ii) of the Industrial Relations Act 1979 (WA) (the Act) that the respondent contravened cl 37 of the Award by failing to pay Mr Mayerhofer an entitlement to attend the two directions hearing and the hearing of the Appeal and seeks a penalty to be imposed and payment of the amount of $2,214.29, being the equivalent of six days of leave (s 83A of the Act).

10      Schedule 1 of these reasons sets out the standing of the parties and the jurisdiction of the Industrial Magistrates Court (IMC) in respect of the claim.

11      Schedule 2 of these reasons sets out the law in respect of interpreting industrial instruments.

12      Schedule 3 of these reasons contains the relevant clauses of the Award.

Issues for Determination

13      For the most part the parties agreed the issues for determination by the IMC. Broadly speaking the issues are:

• When does cl 37 of the Award apply?
• What entitlements does cl 37 of the Award cover?
• What is the character of the Appeal?
• Does the Appeal constitute ‘union business’ (or ‘association business’)?
• Does s 96B of the Act apply to negate cl 37 of the Award in the circumstances?

Claimant’s Contentions

14      The claimant contends that:

• Mr Mayerhofer was required to attend the first and second directions’ hearing and the Appeal to participate in the proceedings and instruct his representative and, therefore, his attendance was ‘essential’ to the running of the Appeal;
• the Appeal is properly characterised as an ‘industrial matter’ within the meaning of s 7 of the Act;
• a proper and ‘generous’ construction of cl 37 of the Award does not confine it to only paid leave for ‘union business’ or ‘association business’, but includes an officer’s attendance or giving evidence at any ‘Industrial Tribunal’ (on an industrial matter), including at the Appeal;
• Mr Mayhofer was entitled to paid leave in relation to not only his attendance at or for the purposes of the Appeal, but also for matters associated with or connected to the Appeal; and
• there is no discrimination, as that term is understood in the context of s 96B of the Act, in interpreting cl 37 of the Award in favour of Mr Mayerhofer because he is a member of the claimant.

15      The claimant submits that a broad and generous construction of industrial tribunal favours an interpretation that it includes any industrial decision-making body capable of hearing and determining industrial matters howsoever composed and for whatsoever purpose.

16      What follows from the claimant’s submission is that whenever an officer for whatever purpose is required to give evidence or attend any industrial tribunal they are eligible for paid leave under cl 37 of the Award.

17      Accordingly, on the claimant’s contention, the Appeal is an industrial matter heard before an industrial tribunal (the PSAB) and the wording of cl 37(1)(a) does not limit the attendance or the giving of evidence for the purpose of union business or association business.

Respondent’s Contentions

18      The respondent contends that:

• Mr Mayerhofer was not required to attend the first and second directions’ hearing or the Appeal nor was his attendance ‘essential’ within the meaning of cl 37 of the Award;
• the Appeal is a personal matter between Mr Mayerhofer and his employer and does not constitute union business and is not an industrial matter;
• a proper construction of cl 37 of the Award does not confine who it applies to, but confines the purpose for which it is intended (i.e. ‘union business’); and
• if the Appeal is considered union business, s 96B of the Act renders the clause of no effect where an officer can access paid leave, by virtue of his or her membership of the claimant, in order to advance the Appeal.

19      The respondent’s submission is that consistent with the other sub-clauses the payment of leave under cl 37 of the Award is more narrowly confined to an officer’s requirement to give evidence or attend at any industrial tribunal for the purposes associated with union business.

20      That is, the purpose of cl 37 of the Award is directed to attendance at and giving of evidence at any industrial tribunal associated with the claimant’s business and not for matters associated with or personal to individual members.

21      Accordingly, on the respondent’s contention, the Appeal even if it is an industrial matter is not union business and as such it was never intended for cl 37 of the Award to provide separate paid leave for attendance, or giving evidence, at proceedings, such as the Appeal.

Is the PSAB an Industrial Tribunal Within the Meaning of Cl 37 of the Award?

22      ‘Industrial Tribunal’ is not defined in the Award or the Act. The reference to industrial tribunal only occurs in cl 37 of the Award.

23      The PSAB is established within and as part of the WA Industrial Relations Commission (Commission) pursuant to s 80H of the Act for the purpose of an appeal under s 80I. Relevant to Mr Mayerhofer it was to hear and determine:

(a)                 an appeal by any public service officer against any decision of an employing authority in relation to an interpretation of any provision of the Public Sector Management Act 1994, and any provision of the regulations made under that Act, concerning the conditions of service (other than salaries and allowances) of public service officers.

24      An appeal under s 80I may be instituted by the public service officer or other government officer concerned or by an organisation on his or her behalf (notably not in the organisation’s own right).

25      In contrast, referrals to the Public Service Arbitrator under s 80E of the Act, depending on the type of referral, may be made by an organisation who may refer an industrial matter in its own right.

26      Pursuant to s 80H(6) Act, ‘organisation’ means an:

organisation that is registered under Division 4 of Part II, an association of employees registered as an organisation pursuant to the provisions of the Fair Work (Registered Organisations) Act 2009 (Commonwealth) or, in the case of an appeal by a medical practitioner employed in a public hospital, the Western Australian Branch of the Australian Medical Association Incorporated.

27      While there was no evidence on this point, it is reasonable to infer in the circumstances that the claimant is an organisation within the meaning of s 80H(6) of the Act.

28      However, the evidence demonstrates that Mr Mayerhofer instituted the Appeal in his own name, notwithstanding the claimant may have lodged the notice of appeal and funded representation for Mr Mayerhofer at the Appeal. In any event, unlike a referral to the Public Sector Arbitrator, the claimant could not have instituted the Appeal in its own right, but could only have done so on behalf of Mr Mayerhofer.

29      It is difficult to say that the PSAB is not an industrial tribunal. The PSAB is part of the Commission established by statute to hear appeals that can only arise as a consequence of a person’s employment in the public sector. Notably, organisations have standing to institute appeals, but only on behalf of an officer, which can be against any decision of an employing authority relating to interpretation of the Public Service Management Act 1994 (WA) and associated regulations concerning conditions of service.

30      Accordingly, I am satisfied an industrial tribunal in cl 37 of the Award includes the PSAB.

What is the Character of the Appeal?

31      While it is open to an applicable organisation to institute an appeal to the PSAB on behalf of an officer, this is not what occurred in this case. But even if the claimant had instituted the Appeal on behalf of Mr Mayerhofer, would this necessary change the Appeal’s character?

32      Mr Mayerhofer filled in and signed the notice of appeal on 24 August 2017 and sent the notice of appeal to the claimant who he understands lodged the notice of appeal. Thereafter, consistent with the claimant’s objectives under the Rules, Mr Mayerhofer applied for, and was granted, funding for representation by the claimant for representation at the Appeal.

33      Again, consistent with the claimant’s objectives under the Rules, the claimant also provided him with support and assistance during the initial investigation by his employer.

34      The Appeal was in Mr Mayerhofer’s name and not in the claimant’s name and Mr Mayerhofer accepted that he had commenced the Appeal. Mr Mayerhofer appealed his employer’s findings and the remedial action because he considered it unfair, the sanction too harsh and that his employer was not authorised to take the action it took. He wanted his employer’s decision quashed.

35      There was no evidence before the IMC demonstrating the claimant instituted the Appeal on Mr Mayerhofer’s behalf. To the contrary, the evidence demonstrates that Mr Mayerhofer commenced the Appeal and the claimant approved funding for one of its officers to represent Mr Mayerhofer and Mr Mayerhofer provided his instructions and accepted advice from his representative at the direction’s hearings and at the hearing of the Appeal.

36      Accordingly, I find the Appeal was instituted by Mr Mayerhofer personally on matters personal to him, rather than by the claimant as an organisation on behalf of one of its members on matters that may affect its membership more broadly or that Mr Mayerhofer otherwise subjugated the Appeal. Thereafter, the claimant was instructed to act on Mr Mayerhofer’s behalf like that of other legal retainers between a lawyer/agent and client.

37      The fact that the claimant may have lodged the notice of appeal for Mr Mayerhofer does not change the character of the Appeal, nor does the fact that the claimant is an association of members of a type which includes Mr Mayerhofer. Further, having regard to the nature and subject matter of the Appeal, even if the claimant had instituted the Appeal on Mr Mayerhofer’s behalf it would not change the character of the Appeal.

Is the Appeal an ‘Industrial Matter’ Within the Meaning of S 7 of the Act?

38      Section 7 of the Act defines ‘industrial matter’. The claimant contends that because the Appeal is an industrial matter this enlivens entitlements under cl 37 of the Award.

39      Having regard to the meaning of ‘industrial matter’ in s 7 of the Act, in my view, and notwithstanding I have found the Appeal is a matter personal to Mr Mayerhofer, it is also a matter affecting or relating or pertaining to his work and affects, relates or pertains to his relationship with his employer.7

40      Therefore, I also find that the Appeal is an industrial matter within the meaning of that term in s 7 of the Act.

Does the Appeal Constitute ‘Union Business’ Within the Meaning of cl 37 of the Award?

41      The claimant’s Rules contain its objects. This includes at cl 3(c) representing the industrial welfare of individual members and at cl 3(p) to provide appropriate representational services, including advocacy and industrial advice for members, delivered through union officials, employees, councillors, delegates and agents.

42      The claimant’s objects (of the association) also include a raft of other items that all make up the purpose of the association which is primarily directed to ‘protect and promote the interests of the membership’. Thereafter, typical of most association constitutions or rules, the Rules provide for how the claimant is to be run or administered.

43      Clause 37(2) of the Award refers to the granting and approval of leave upon certain conditions, including to enable the union business to be conducted or evidence to be given (the heading of cl. 37 refers to ‘association business’, but ‘union business’ is used in the body of the clause).

44      ‘Union business’ is not defined in the Award or the Act. ‘Union’ is defined in the Award to mean the claimant. The word ‘business’ is not defined in the Award or Act, but has several meanings associated with the context in which the word is used. For example:

(1)           a trade or profession;

(2)           an industrial, commercial, or professional operation; purchase and sale of goods and services: the tailoring business;

(3)           a commercial or industrial establishment, such as a firm or factory;

(4)           commercial activity, dealings (in the phrase do business);

(5)           volume or quantity of commercial activity: business is poor today;

(6)           commercial policy or procedure: overcharging is bad business;

(7)           proper or rightful concern or responsibility (often in the phrase mind one's own business);

(8)           a special task, assignment;

(9)           a matter or matters to be attended to: the business of the meeting;

(10)       an affair, matter: a queer business: I'm tired of the whole business;

(11)       serious work or activity: get down to business;

(12)       a complicated affair; rigmarole;

(13)       informal, a vaguely defined collection or area: jets, fast cars, and all that business;

(14)       (Theatre) theatre Also called: stage business an incidental action, such as lighting a pipe, performed by an actor for dramatic effect;

(15)       (Zoology) a group of ferrets;

(16)       euphemistic, defecation (especially in the phrase do one's business);

(17)       slang, prostitution;

(18)       like nobody's business, informal, extremely well or fast;

(19)       mean business, to be in earnest;

(20)       do the business, informal, to achieve what is required: it tastes vile, but it does the business.8

45      In the context of the Award, the word ‘business’ is more likely to mean an industrial, commercial, or professional operation or commercial activity or dealings, both meanings having a commercial aspect. Thus, having regard to the relevant ordinary meaning of ‘business’ in the context of where the word is used, ‘union business’ is more likely intended to mean something in connection with the professional operation of the claimant or the commercial activity or dealings of the claimant.

46      With this meaning in mind, is it the Appeal or the provision of representation and support to the Appeal or both that constitutes union business for the purposes of cl 37 of the Award?

47      The only reference to union business in the Award is that referred to in cl 37. Save for cl 37(1)(a) where there is no mention of union business, it is fair to say that the reference to union business in subclauses (1)(b) to (d) is in the context of the professional operation and/or professional or commercial activities of the claimant and not in the context of individual member matters.

48      Naturally, any commercial dealings or activities arising from meeting with ministers or negotiations before industrial tribunals or attendance at consultative committees may have an impact upon individual members, but the use of the words union business appears directed towards the claimant and its professional operation as a collective.

49      Having characterised the Appeal as a matter personal to Mr Mayerhofer, and notwithstanding he was represented at the Appeal by the claimant, I do not consider the Appeal is union business as that term is intended to mean and is used in cl 37 of the Award.

50      The provision of welfare or representation for the purposes of the Appeal is part of the claimant’s objects in its Rules. Therefore, the decision to provide or not to provide certain services and the actual provision of representation or welfare forms part of the claimant’s professional operation or commercial dealings. However, the Appeal itself does not form any part of the claimant’s professional operation or commercial dealings and the mere fact of acting in accordance with the objects enunciated under the Rules does not then re-characterise the Appeal so that it becomes union business.

51      Further, the character of the Appeal does not change because Mr Mayerhofer, as a member of the claimant, applies for funding to be represented at the Appeal and is represented at the Appeal. The character of the Appeal remains the same whether it was instituted by a member funded and represented by the claimant or instituted by a non-member self-funded and represented by some other organisation.

52      The same principal may apply if an appeal is instituted by the claimant on behalf of an officer or member, but it is likely to depend upon the nature or character of any appeal. In this case my view is similar to that expressed above. That is, if the claimant had instituted the Appeal on behalf of Mr Mayerhofer the character of the Appeal would remain the same – a matter personal to Mr Mayerhofer and not union business within the meaning of cl 37 of the Award.

Is the Intention and Purpose of Cl 37 to Apply Where the Attendance Before an Industrial Tribunal is Not for ‘Union Business’?

53      The claimant submits that cl 37 is, in part, intended to provide for paid leave for any required attendance for any purpose or to give evidence at any industrial tribunal and is not in any way fettered by the need for the purpose to be associated with union business.

54      The respondent submits the contrary.

55      Clause 37 of the Award is entitled ‘Leave To Attend Association Business’.

56      The parties dispute the relevance of the heading of cl 37 of the Award with the claimant saying that it is suggestive of the scope of the clause and the respondent saying it is indicative of the scope of the clause.

57      Irrespective of whether the heading is described as suggestive or indicative of the purpose for interpreting cl 37, it is apparent that it provides some guidance to what cl 37 is intended to relate to. This is consistent with each other heading of the clauses contained in the Award, specifically the clauses relating to leave entitlements.

58      In determining the application of cl 37 the whole of the clause is relevant.

Clause 37(1) of the Award

59      The employer shall grant paid leave at the ordinary rate of pay during normal working hours to an officer in the following circumstances:

(a)          who is required to attend and give evidence before any Industrial Tribunal;

(b)          who as a Union-nominated representative is required to attend any negotiations and/or proceedings before an Industrial Tribunal and/or meetings with Ministers of the Crown, their staff or any other representative of Government;

(c)           when prior arrangement has been made between the Union and the employer for the officer to attend official Union meetings preliminary to negotiations and/or Industrial Tribunal proceedings; and

(d)          who as a Union-nominated representative is required to attend joint union/management consultative committees or working parties.

60      As previously stated, the claimant submits that the Appeal falls within cl 37(1)(a) and consequently Mr Mayerhofer was required to attend and to give evidence at the Appeal. That is, on the claimant’s submissions, and having regard to the ordinary language of the text, cl 37(1)(a) is unfettered by any requirement for the attendance or evidence to be about union business (or association business).

61      Unlike cl 37(1)(a) of the Award, subclauses (1)(b), (c) and (d) refer to attendances by union-nominated representatives at any negotiations or proceedings before an industrial tribunal or meetings with ministers, ministerial staff or any other government representative or by agreement at official union meetings preliminary to negotiations or industrial tribunal proceedings or joint union/management consultative committees or working parties.

62      It is apparent from the language and context of subclauses (1)(b), (c) and (d) that paid leave under these subclauses is intended for those union officers directly involved in union related activities for the general membership. In that sense the language used in cl 37(1)(a) is inconsistent with the other subclauses.

Clause 37(2) of the Award

63      The granting of any such leave in cl 37(1) is subject to convenience and shall only be approved:

(a)          where reasonable notice is given for the application of the leave;

(b)          for the minimum period necessary to enable the union business to be conducted or evidence to be given; and

(c)          for those officers who attendance is essential.

64      The conditions of approval of leave is consistent with subclauses (1)(b), (c) and (d) in the sense of a connection between the need to attend or give evidence and union business.

65      Notably, the period of paid leave is the minimum period necessary to enable union business to be conducted or evidence to be given. One of the claimant’s contentions is that not only is the Appeal union business, where Mr Mayerhofer was required to attend the Appeal to give instructions and give evidence, but he was also required to attend the claimant’s office for the purpose of preparing the Appeal.

66      If, as suggested by the claimant, the Appeal was in fact union business (which is not accepted), rather than a personal matter related to Mr Mayerhofer, there was arguably no requirement for Mr Mayerhofer’s attendance at the Appeal or the union office for the time suggested by him in the claim or in his evidence. The claimant’s submission of the essential nature of Mr Mayerhofer’s attendance for all aspects of the Appeal underscores the finding that the Appeal was personal to Mr Mayerhofer and was not union business.

Clause 37(3) of the Award

67      The employer is not liable for any expenses associated with an officer attending to union business.

68      While ‘expenses’ is not defined in the Award, given the employer is required to grant paid leave, it suggests that other ‘out of pocket’ items, such as fuel, accommodation, meals, are not required to be paid by the employer. However, relevantly, the underlying nexus is the association with union business.

Clause 37(4) of the Award

69      Leave of absences granted under this clause shall include any necessary travelling time in normal working hours.

Clause 37(5) of the Award

70      An officer is not entitled to paid leave to attend to union business other than as prescribed by cl 37.

71      Subclause (5) arguably reinforces the connection between paid leave under cl 37 and union business.

Clause 37(6) of the Award

72      The provisions of the clause shall not apply to:

(a)          special arrangements made with the union which provide for unpaid leave for officers to conduct union business;

(b)          when an officer is absent from work without the approval of the employer; and

(c)           casual officers.

73      Again, subclause (6) arguably reinforces the connection between authorised and paid leave under cl 37 and union business.

Any other relevant clause in the Award

74      Clause 41 of the Award provides for leave with pay in circumstances where officers are summonsed to give evidence in an official capacity or on behalf of the Crown. In any other capacity where an officer is summonsed to give evidence they can either be granted leave without pay or clear accrued leave.

75      Accordingly, cl 41 of the Award appears to be intended to cover the distinction between an officer being summonsed to give evidence in private litigation and an officer summonsed in some form of official capacity.

Determination

76      Notwithstanding there is no reference to union business or association business in cl 37(1)(a) of the Award, the respondent’s construction of cl 37 is preferred. It is apparent that a reading of the whole of the clause supports the intention for cl 37 to apply in circumstances where the union along with union-nominated representatives or another officer essential to negotiations or proceedings involving the union is required to attend, in broad terms, on matters effecting the public service workforce or at the very least union members as a collective.

77      It is in that context that cl 37(1)(a) of the Award must be construed. That is, cl 37(1)(a) is intended to apply where an officer is required to attend and give evidence at any industrial tribunal on matters relevant to union business, between the union and individual government departments, the government or its ministers and staff which involve the public service workforce or at the very least union members as a collective.

78      In my view, the intention of cl 37(1)(a) of the Award is not to provide a separate type of paid leave for individual officers to attend to litigation unrelated to the commercial activities and professional operation of the union, albeit that the litigation may be related to their work place or employer.

79      Therefore, I do not accept that cl 37 of the Award applies in Mr Mayerhofer’s case to attend, give evidence at and prepare for the Appeal.

80      Accordingly, I am not satisfied the claimant has proven to the requisite standard that the respondent contravened cl 37 of the Award in failing to grant paid leave for him to attend and give evidence at the Appeal (including at the two direction’s hearings).

What Entitlements Does Cl 37 of the Award Cover?

81      Notwithstanding I have found against the claimant, the purported requirement for Mr Mayerhofer to attend the Appeal (at the direction’s hearings and the hearing of the Appeal) for six days was argued before the IMC. I will make some observations in relation to the amount of time claimed and entitlements under cl 37.

82      It was apparent from Mr Mayerhofer’s oral evidence that his claim for six days paid leave was inflated. He sought to round up time to whole days where it was apparent he did not devote the whole of a day to the Appeal, but carried out other work at the claimant’s office. He claimed time to prepare the Appeal with his representative rather than the actual attendances or giving evidence at the Appeal. He claimed travel time because in his view he was required to travel to Perth from Geraldton and from accommodation in Perth to the Appeal during and after work hours. He attended one directions hearing in person and claimed a whole day in paid leave including travel time from Geraldton to Perth and return. He attended a second direction’s hearing by telephone and claimed a whole day in paid leave. The Appeal was heard over two days and Mr Mayerhofer claimed four days paid leave where his evidence occupied a ‘couple of hours’ on the first day of the Appeal.

83      The claimant’s submission that the entirety Mr Mayerhofer’s attendance at the Appeal was required for the Appeal was diminished by Mr Mayerhofer’s oral evidence and was inconsistent with the its submission that the Appeal was union business. That is, if the Appeal was union business as the claimant submitted, then Mr Mayerhofer’s attendance at the Appeal could have been limited to the first directions hearing and the first day of the hearing of Appeal where his attendance was required to give evidence and carry out some negotiations.

84      I am somewhat ambivalent about the actual requirement for Mr Mayerhofer to attend the first direction’s hearing in person. Many courts conduct directions hearings, conferences and hear evidence using video or audio facilities for any number of reasons. I am highly sceptical that Mr Mayerhofer’s attendance at the first directions hearing in person was required where on his evidence the first directions hearing was for one hour, including having the hearing stood down to see if that the Appeal could be settled.

85      Mr Mayerhofer’s attendance at the second directions hearing was not required because on his own evidence it was perfunctory for the purposes of confirming whether the Appeal was to proceed and to set a hearing date. If the Appeal was union business (on the claimant’s submission) the requirement for him to attend the second directions hearing was unnecessary.

86      Further, the hearing of the Appeal finished at midday on the second day, including the respondent’s evidence and closing submissions, and where the claimant claims the Appeal was union business I do not accept Mr Mayerhofer’s attendance was required on the second day of the Appeal.

87      Clause 37 of the Award requires the employer to grant paid leave for the purpose of required attendances or giving of evidence and necessary travelling time in working hours, but only for the minimum period necessary to do so.

88      Having regard to Mr Mayerhofer’s evidence of the reasons for his attendance and where I do not accept that it was required in all instances claimed by him or where I find that he inflated the amount of time required to attend or give evidence at the Appeal, if I had accepted the claimant’s construction of cl 37 of the Award the amount of paid leave I would have awarded would be limited to:

• one hour for Mr Mayerhofer’s attendance at the first directions hearing which I find could have been reasonably attended by him by video or audio link;
• attendance at the first day of the Appeal during the course of hearing the Appeal only, limited to the actual sitting time of the PSAB (which I assume similar to most courts and tribunals is six hours); and
• travel time from Geraldton to Perth and return for the first day of the Appeal (which I have calculated to be nine hours).

89      Thus the total time of paid leave I would have allowed would have been 16 hours or two days and two hours (where a full day is 7.5 hours) as opposed to the 45 hours claimed by the claimant.

Does S 96B of the Act Negate Cl 37(1)(a) of the Award?

90      Having determined that the respondent did not contravene cl 37 of the Award, it is unnecessary to determine the application of s 96B of the Act to cl 37. In addition, the contention was not fully argued by the parties.

91      However, because it was raised I make the following observations.

92      Relevantly, s 96B(1)(a)(iv) of the Act provides that an award, industrial agreement or order under this Act, or any arrangement between persons relating to employment must not require a person ‘to treat another person less favourably or more favourably according to whether or not that other person is, or will become or cease to be, a member of an organisation’.

93      If cl 37(1)(a) of the Award was interpreted to apply unrelated to union or association business, the granting of paid leave would apply to members and non-members of the union alike.

94      For reasons already stated this interpretation of the clause was not accepted.

95      If the meaning of union business in cl 37 was interpreted to include the Appeal (i.e. if the meaning of union business included a personal industrial matter), arguably the cohort of officers able to access paid leave to attend or give evidence at an industrial tribunal (for example, the PSAB) are those who are members of the union.

96      Non-members of the union could not claim paid leave under cl 37 in respect of similar proceedings because there is no nexus between the non-member and the union to characterise the proceedings as union business (noting the claimant’s submission that representation and funding by the union is sufficient to satisfy the meaning of union business).

97      Therefore, of two officers, one a member and one a non-member of the union, subject to the same Award9 in like proceedings (i.e. an appeal to the PSAB), only one officer would be eligible for a paid leave under cl 37 of the Award and they would only be eligible by virtue of their membership to the union.

98      If this interpretation was accepted, the non-member would arguably be treated less favourably under cl 37(1)(a) of the Award and, arguably, the entitlement to paid leave under cl 37(1)(a) is of no effect.

99      The drafters of the Award, which applies to all public service officers, could not have intended for a clause to operate preferentially to members of the Union in relation to the attendance, or giving of evidence, at the same or similar tribunal/court/hearing on the same or similar subject matter.

100   In my view, this also supports the preferred construction of cl 37 of the Award.

Outcome

101   The claimant’s claim for contravention of the Award and associated claim for a penalty and orders is dismissed.

D. SCADDAN

INDUSTRIAL MAGISTRATE

1 Exhibit 2, Rule 3(p).

2 Exhibit 1, annexure A.

3 Exhibit 1, annexure B.

4 Exhibit 1, annexure C.

5 Exhibit 1, annexure D.

6 Exhibit 1, annexure E.

7 See definition of ‘industrial matter’ in s 7 of the Act, in particular s 7(ca).

8 Numbers five to 20 can be safely discounted in this case.

9 See cl 4 of the Award.

SCHEDULE 1 – STANDING OF THE PARTIES AND JURISDICTION OF THE IMC

1. The IMC has the jurisdiction conferred by the Industrial Relations Act 1979 (WA) (IR Act) and other legislation. Sections 83 and 83A of the IR Act confer jurisdiction on the court to make orders for the enforcement of a provision of an industrial agreement where a person has contravened or failed to comply with the agreement. If the contravention or failure to comply is proved, the IMC may issue a caution or impose a penalty and make any other order, including an interim order, necessary for the purpose of preventing any further contravention. The IMC must order the payment of any unpaid entitlements due under an industrial agreement.
2. The powers, practice and procedure of the IMC are the same as a case under the Magistrates Court (Civil Proceedings) Act 2004 (WA). The onus of proving a claim is on the claimant and the standard of proof required to discharge this onus is proof ‘on the balance of probabilities’. The IMC is not bound by the rules of evidence and may inform itself on any matter and in any manner as it thinks fit. In Sammut v AVM Holdings Pty Ltd [No2] [2012] WASC 27 [40] – [47], Commissioner Sleight examined a similarly worded provision regulating cases in the State Administrative Tribunal of Western Australia, noting:

[T]he rules of evidence are [not] to be ignored…. After all, they represent the attempt made, through many generations, to evolve a method of enquiry best calculated to prevent error and elicit truth. …

The more flexible procedure provided for does not justify decisions made without a basis in evidence having probative force.

SCHEDULE 2 – RELEVANT PRINCIPLES OF CONSTRUCTION

1. This case involves construing the Award. The relevant principles to be applied when interpreting an industrial instrument are set out by the Full Bench of the Western Australian Industrial Relations Commission in Fedec -v- The Minister for Corrective Services [2017] WAIRC 00828 [21] – [23]. In summary (omitting citations), the Full Bench stated:
   1. ‘The general principles that apply to the construction of contracts and other instruments also apply to the construction of an industrial agreement.’
   2. ‘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. 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. 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’;
   4. ‘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’;
   5. ‘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’; and
   6. ‘Industrial agreements are usually not drafted with careful attention to form by persons who are experienced in drafting documents that have legal effect.’

To the above list I would add:

7. Ascertaining the intention of the parties begins with a consideration of the ordinary meaning of the words of the instrument. Ascertaining the ordinary meaning of the words requires attention to the context and purpose of the clause being construed. City of Wanneroo v Australian Municipal, Administrative, Clerical And Services Union [2006] FCA 813 [53] – [57] (French J).
8. Context may appear from the text of the instrument taken as a whole, its arrangement and the place of the provision under construction. The context includes the history of the instrument and the legal background against which the instrument was made and in which it was to operate. City of Wanneroo v Australian Municipal, Administrative, Clerical And Services Union [2006] FCA 813 [53] – [57] (French J); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638 [28] – [30] (Katzmann J).

SCHEDULE 3 – RELEVANT AWARD CLAUSES

4. - SCOPE

This Award shall apply to all public service officers, other than those listed in (a), (b) and (c) of this clause, appointed under Part 3 or Part 8 Section 100, of the Public Sector Management Act 1994 or continuing as such by virtue of clause 4(c) of Schedule 5 of that Act, who are members of or eligible to be members of the Civil Service Association of Western Australia (Inc).

(a) A public service officer whose remuneration payable is determined or recommended pursuant to the Salaries and Allowances Act 1975.

(b) A public service officer whose remuneration is determined by an Act to be at a fixed rate, or is determined or to be determined by the Governor pursuant to the provisions of any Act.

(c) A chief executive officer as defined in section 3(1) of the Public Sector Management Act 1994.

6. - DEFINITIONS

In this Award, the following expressions shall have the following meaning:-

"Administrative Instruction" means administrative instruction as defined by Schedule 5 of the Public Sector Management Act 1994.

"Casual Officer" means an officer engaged by the hour for a period not exceeding one calendar month in any period of engagement, as determined by the employer.

"Chief Executive Officer" in relation to any officer employed in a Department, means the person immediately responsible for the general management of the Department to the Minister of the Crown for the time being administering the Department.

"De Facto Partner" means a relationship (other than a legal marriage) between two persons who live together in a 'marriage-like' relationship and includes same sex partners.

“Employees” means public service officers and executive officers employed in the Public Service under Part 3 and Part 8 of the Public Sector Management Act 1994.”

"Employer" and "Employing Authority" means employing authorities as defined by section 5 of the Public Sector Management Act 1994.

"Headquarters" means the place in which the principal work of an officer is carried out, as defined by the employer.

"Metropolitan Area" means that area within a radius of fifty (50) kilometres from the Perth City Railway Station.

"Officers" means public service officers and executive officers employed in the Public Service under Part 3 and Part 8 of the Public Sector Management Act 1994.

"Partner" means either spouse or defacto partner.

"Spouse" means a person who is lawfully married to that person.

“Union” means the Civil Service Association of Western Australia Incorporated (the Association).

37. - LEAVE TO ATTEND ASSOCIATION BUSINESS

(1) The employer shall grant paid leave at the ordinary rate of pay during normal working hours to an officer:

(a) who is required to attend or give evidence before any Industrial Tribunal;

(b) who as a Union-nominated representative is required to attend any negotiations and/or proceedings before an Industrial Tribunal and/or meetings with Ministers of the Crown, their staff or any other representative of Government;

(c) when prior arrangement has been made between the Union and the employer for the officer to attend official Union meetings preliminary to negotiations and/or Industrial Tribunal proceedings; and

(d) who as a Union-nominated representative is required to attend joint union/management consultative committees or working parties.

(2) The granting of leave is subject to convenience and shall only be approved:

(a) where reasonable notice is given for the application for leave;

(b) for the minimum period necessary to enable the union business to be conducted or evidence to be given; and

(c) for those officers whose attendance is essential.

(3) The employer shall not be liable for any expenses associated with an officer attending to union business.

(4) Leave of absence granted under this clause shall include any necessary travelling time in normal working hours.

(5) An officer shall not be entitled to paid leave to attend to union business other than as prescribed by this Clause.

(6) The provisions of the Clause shall not apply to:

(a) special arrangements made with the union which provide for unpaid leave for officers to conduct union business;

(b) when an officer is absent from work without the approval of the employer; and

(c) casual officers.

41. - WITNESS AND JURY SERVICE

Witness

(1) An officer subpoenaed or called as a witness to give evidence in any proceeding shall as soon as practicable notify the manager/supervisor who shall notify the employer.

(2) Where an officer is subpoenaed or called as a witness to give evidence in an official capacity that officer shall be granted by the employer leave of absence with pay, but only for such period as is required to enable the officer to carry out duties related to being a witness.  If the officer is on any form of paid leave, the leave involved in being a witness will be reinstated, subject to the satisfaction of the employer.  The officer is not entitled to retain any witness fee but shall pay all fees received into the Consolidated Fund.  The receipt for such payment with a voucher showing the amount of fees received shall be forwarded to the employer.

(3) An officer subpoenaed or called as a witness to give evidence in an official capacity shall, in the event of non-payment of the proper witness fees or travelling expenses as soon as practicable after the default, notify the employer.