2023 WAIRC 00722
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT


CITATION : 2023 WAIRC 00722

CORAM
: INDUSTRIAL MAGISTRATE E. O'DONNELL

HEARD
:
WEDNESDAY, 30 NOVEMBER 2022

DELIVERED : THURSDAY, 24 AUGUST 2023

FILE NO. : M 6 OF 2022

BETWEEN
:
WESTERN AUSTRALIAN PRISON OFFICERS’ UNION OF WORKERS
CLAIMANT

AND

MINISTER FOR CORRECTIVE SERVICES
RESPONDENT

CatchWords : INDUSTRIAL LAW – entitlement to purchased leave – requirement to consult with officers
Legislation : Industrial Relations Act 1979 (WA)
Instrument : Department of Justice Prison Officers’ Industrial Agreement 2020
Result : Claim dismissed
REPRESENTATION:

CLAIMANT : MR D. STOJANOSKI (OF COUNSEL)
RESPONDENT : MR M. MCILWAINE (OF COUNSEL)

REASONS FOR DECISION
1 The Western Australian Prison Officers’ Union of Workers (WAPOU) brings this claim on behalf of four of its members (officers) who, at the relevant time, were employed by the respondent as prison officers at Casuarina Prison, Bandyup Prison and Albany Prison (prisons).
2 WAPOU claims that the respondent contravened cl 138 of the Department of Justice Prison Officers’ Industrial Agreement 2020 (Agreement), which covered the officers at the relevant time.
3 By way of remedy, WAPOU seeks a penalty pursuant to s 83(4)(a)(ii) of the Industrial Relations Act 1979 (WA) (the Act), as well as an order of the Court aimed at preventing any further contravention, pursuant to s 83(5) of the Act.
4 For the following reasons, the claim must be dismissed.
I What did the officers seek under the Agreement?
5 The essential facts of the case are those that appear at paragraphs 2-5 of the Statement of Agreed Facts. Exhibit 1.
I repeat those paragraphs as follows:
6 Prior to 1 July 2021, each of the officers had entered into a purchased leave salary arrangement (PLSA) to purchase additional leave pursuant to sub-cl 138.1 of the Agreement.
7 Prior to 31 March 2021, each of the officers made an application to purchase leave “blocks” during the following “leave year”, which ran from 1 July 2021 to 30 June 2022 (the leave year).
8 Each of the prisons did not offer any access to the purchased leave blocks during the leave year to the officers, or indeed to any prison officer.
9 The respondent (via the prisons) did not consult with the officers, nor with any other prison officer employed by the respondent regarding their respective applications to take purchased leave blocks during the leave year.
II What was the respondent required to do under clause 138 of the Agreement?
(i) Entry into purchased leave salary arrangements
10 Sub-clause 138.1 provides:
An Officer may elect to enter into an arrangement whereby the Officer can purchase a block of two- or three-weeks’ additional leave by agreeing to take a reduced Annualised Salary spread over a Leave Year provided the Officer has an accrued annual leave balance of less than 12 weeks.
11 Per the agreed facts, the officers elected to enter into PLSAs of the type contemplated by sub-cl 138.1, for the leave year 2021-2022.
12 It is not suggested that any of the officers had an accrued annual leave balance of 12 or more weeks at the time they elected to enter into their PLSAs. I accept WAPOU’s submission that it was therefore not open to the respondent to consider granting access to the PLSAs only after considering the terms of sub-cl 138.3.
13 Nor is it suggested that any of the officers fell within the parameters of sub-cl 138.6, which means that there was no basis for the respondent to outright refuse them access to PLSAs for the leave year.
14 As it was, the respondent did not purport to consider the applications on the basis of either sub-cl 138.3 or sub-cl 138.6; rather, it accepted the applications and allowed the officers to enter into PLSAs for the 2021-2022 leave year. See the emails in the Bundle of Agreed Documents (Exhibit 3), which all reference the acceptance of the officers’ elections to enter into PLSAs.

15 There was, therefore, no contravention of sub-cl 138.1.
(ii) Having allowed the officers to enter PLSAs, what did the respondent have to do pursuant to the Agreement?
16 Having allowed the officers to enter into PLSAs, the respondent had obligations pursuant to sub-cl 138.7 of the Agreement. That clause provides:
Each Prison, prior to the start of the Leave Year, will determine the number of Officers who entered into a purchased leave salary arrangement and develop a leave roster. The roster should allocate this leave evenly throughout the Leave Year. Officers will be given the opportunity to nominate periods within the roster. Where more Officers than can be accommodated nominate for a particular block the Employer will decide in consultation with those Officers directly affected who is to be allocated the period. Subject to subclause 138.3, Officers will receive priority where the requested leave adjoins their existing annual leave roster.
17 The first obligation under sub-cl 138.7 is that the prisons determine the number of officers who entered into a PLSA and develop a leave roster. This must be done prior to the start of the leave year – so, in this case, prior to 1 July 2021.
18 All the other obligations in sub-cl 138.7 hinge upon the development of a leave roster. If no roster is developed:
a. The roster cannot allocate purchased leave evenly throughout the leave year (as it does not exist);
b. Officers cannot be given an opportunity to nominate leave periods in the non-existent roster;
c. There can be no consultation with officers as to who should be allocated a particular “over-subscribed” leave period, since no leave period exists to become over-subscribed.
(iii) Did the prisons develop leave rosters pursuant to cl. 138.7?
19 With respect to the development of leave rosters at the prisons, I have had regard to:
a. The Bundle of Agreed Documents; Exhibit 3.
and
b. The witness statement of Roderick McAteer (Mr McAteer). Exhibit 2.

20 The Bundle of Agreed Documents contains emails sent by each prison to its staff about the status of PLSA applications and the likelihood of being able to accommodate purchased leave in the 2021-2022 leave year.
a. Document 1, dated 31 March 2021, was sent by Albany Regional Prison Superintendent Charlie Tuck to uniformed staff at Albany Prison.
b. Document 2, dated 1 April 2021, was sent by Casuarina Prison Manager Human Resources Jennie Urban on behalf of Superintendent James Schilo ACM JP to uniformed staff at Casuarina Prison.
c. Document 3, dated 16 July 2021, was sent by Bandyup Women’s Prison Business Manager Steve Newell (Mr Newell) to uniformed staff at Bandyup Prison.
21 Document 1 (pertaining to Albany Prison) and Document 2 (pertaining to Casuarina Prison) of the Bundle of Agreed Documents both state in part:
In considering the Prison’s current operational needs and capability, a decision has been taken that the Prison is unable to accommodate approval of any purchased leave periods during the forthcoming leave year.
Should circumstances change, and it is determined that available Purchased Leave roster periods within the 2021/22 Roster can be offered, Officers with a PLSA will be notified accordingly and provided opportunity to nominate for the available leave period(s). The usual selection/allocation process would then be followed if there was more than one application for a particular vacant period (emphasis added).
22 In my opinion, the reference to the “2021/2022 Roster” in both emails is a reference to the roster as a whole, and not to a leave roster as contemplated by sub-cl 138.7.
23 The phrase, “available Purchased Leave roster periods within the 2021/2022 Roster” (emphasis added) suggests to me that purchased leave blocks in fact had been inserted into the broader 2021/2022 roster. If that is the case, then I have no difficulty finding that Albany and Casuarina Prisons had developed leave rosters in accordance with sub-cl 138.7, and that there was a possibility they still might offer blocks within those leave rosters “should circumstances change”.
24 The statement of Mr McAteer, Exhibit 2.
with its annexures, strengthens my interpretation that the phrase “available Purchased Leave roster periods” is referring to leave blocks which had been formulated – at least by Casuarina Prison, which is where Mr McAteer worked.
25 At [9]-[26] of his statement, Mr McAteer explains the usual process for entering into a PLSA and then taking purchased leave. He sets out a process whereby Casuarina Prison (his employer for the last 28 years) always took the steps required by sub-cl 138.7. He states that the allocation of purchased leave had proceeded the same way – until, he says, 2021.
26 Mr McAteer goes on to state that in 2021, he entered into a PLSA, and that he had an accrued leave balance of less than 12 weeks. He submitted this application prior to the end of March 2021, as required by the Agreement. He states Exhibit 2 at [30].
that following this:
The Department did not take any of the usual above steps, and prior to declining the purchased leave entitlement did not:
a. Determine the number of Officers who entered into a purchased leave salary arrangement;
b. Develop a roster allocating leave evenly throughout the Leave Year;
c. Consider consulting with officers that had applied for the same purchased leave period as to who it is going to be allocated to.
27 Annexure RM-2 to Mr McAteer’s statement directly contradicts what he says at paragraph 30 of his statement. Annexure RM-2 is an email dated 4 March 2021, sent by Steph Czerniak (Ms Czerniak), HR Rosters Officer at Casuarina Prison, to a large number of recipients, including Derick.McAteer@justice.wa.gov.au, a recipient who I find to be Roderick McAteer. That email states:
Good afternoon,
You have handed in a Purchase Leave application in, (sic) but not provided the dates you would like to take.
Can you please give me 3 preferences of Leave dates you want to take? – I cannot send your form to head office to be processed without these dates. Can you please forward them on by 12/03/2021.
The dates you can choose from are below.
28 The email then attaches a table which is clearly a leave roster for purchased leave for the 2021-2022 leave year. The leave blocks range from 02.07.21-22.07.21 through to 03.06.22-23.06.22.
29 On the basis of that evidence, I find that prior to the start of the 2021-2022 leave year (as at the date of Ms Czerniak’s email, 4 March 2021), Casuarina Prison had determined the number of officers who had entered into a PLSA (the recipients of the email), had developed a leave roster which allocated the leave evenly throughout the leave year, and had given the officers the opportunity to nominate periods within the roster (the precise request that was made in the email).
30 Further, I find that in his application to enter into a PLSA dated 4 February 2021, See Document produced by the respondent under Order 1 of 30 November 2022.
Mr McAteer himself nominated one of the purchased leave blocks allocated in the table attached to Ms Czerniak’s email – namely, the block from 17/12/21-06/01/22.
31 Given that the email sent by Albany Prison to its uniformed officers on 31 March 2021 was in virtually identical terms to the one sent by Casuarina Prison one day later, and in particular because it also referred to “available Purchased Leave roster periods within the 2021/2022 Roster”, I find on the balance of probabilities that Albany Prison had also determined the number of officers who had entered into a PLSA, had developed a leave roster which allocated the leave evenly throughout the leave year, and had given the officers the opportunity to nominate periods within the roster.
32 Document 3 (pertaining to Bandyup Prison) is worded differently. It states in part:
Some staff have applied for purchased leave. These applications are currently being process (sic) and staff are receiving an email stating that your purchased leave has been approved and your credits are now available for booking.
The email relates to the fact that your application has been processed and the deduction will be coming out of your salary.
The Department advised the prison that overtime could not be utilised to cover purchased leave. That means that no purchased leave can be booked until there is sufficient staff to cover the staff taking purchased leave. At this point in time I am unable to advise when we will have to (sic) sufficient staff to allow staff to take purchased leave.
33 This email is essentially saying that where an officer is on a period of purchased leave, the prison, pursuant to a directive from the Department, cannot ask other officers to work overtime to cover that leave.
34 This leads me to infer that Bandyup Prison was experiencing a situation where, if they granted blocks of purchased leave, they would be relying on officers to work overtime to cover it – a situation which was not approved by the Department. This alone would then lead logically to the inference that the prison was experiencing a shortage of officers. But in fact, I do not need to infer that, because Mr Newell makes it explicit when he says:
At this point in time I am unable to advise when we will have to (sic) sufficient staff to allow staff to take purchased leave.
35 The following factors:
a. The timing of Mr Newell’s email – 16 July 2021, which was after the commencement of the leave year;
b. The reference in that email to a separate email which had informed officers that ‘your purchased leave has been approved and your credits are now available for booking’;
c. Mr Newell’s reference to the inability to use overtime to cover purchased leave – indicating that the prison had considered how it might accommodate periods of purchased leave that it had formulated; and
d. The fact that “the Department” (which I take to be a reference to the Department of Corrective Services) had specifically advised that overtime was not to be utilised to cover purchased leave – indicating that this had been posited as a solution in view of the need to allocate leave blocks that had been formulated;
together lead me to infer that Bandyup Prison in fact had, prior to the start of the leave year (i.e., prior to 1 July 2021), determined the number of officers who had entered into a PLSA, had developed a leave roster and had called for officers to nominate preferred leave blocks in that roster, as contemplated by sub-cl 138.7.
36 I therefore find that all the prisons had fulfilled several of the requirements set out in sub-cl 138.7.
37 However, per the Statement of Agreed Facts, the prisons did not then proceed to offer access to the purchased leave blocks – potentially leaving open the conclusion that they nonetheless contravened sub-cl 138.7.
III Why did the prisons not proceed to allocate purchased leave to the officers?
38 Document 1 and Document 2, referenced above, explicitly state that having regard to ‘the operational needs and capability’ of Albany Prison and Casuarina Prison, those prisons would be unable to accommodate approval of any purchased leave periods during the forthcoming leave year.
39 Mr Newell’s references in Document 3 to having to resort to overtime to cover purchased leave, and his statement that he was unable to advise when the prison would have ‘sufficient staff to allow staff to take purchased leave’ equally constitute references to operational needs and capability – namely, the fact that the prison workforce would be stretched overly thin, in a way the Department would not permit, if people were to take purchased leave.
40 In those circumstances, the prisons had no capacity to offer additional leave pursuant to PLSAs, and it is clear that this is why the prisons did not go ahead and give the officers access to purchased leave blocks.
IV Was it open to the prisons to consider operational needs when declining to allocate purchased leave blocks?
41 WAPOU contends that where, as in this case, officers have been permitted to enter into PLSAs, the Agreement requires the prisons to provide purchased leave to those officers. It says this is an absolute requirement and that the Agreement does not allow the prisons to avoid it under any circumstances.
42 As I have said, I am satisfied on the balance of probabilities that the prisons had fulfilled the requirements of sub-cl 138.7, from the beginning of that clause up to and including giving the officers the opportunity to nominate periods with the leave roster.
43 The next task pursuant to sub-cl 138.7 is as follows:
Where more Officers than can be accommodated nominate for a particular block the Employer will decide in consultation with those Officers directly affected who is to be allocated the period (emphasis added).
44 As noted at paragraphs [38]-[40] above, it is clear that the prisons were experiencing a great deal of pressure on their human resources, such that they had concluded that they could not afford to allow officers to take additional leave on top of their usual quota of annual leave.
(i) How is a prison to determine whether “more officers than can be accommodated” have nominated for a particular leave block?
45 The Agreement does not set out any particular considerations that the prisons ought to take into account when determining whether a particular purchased leave block is over-subscribed, i.e., that more officers than can be accommodated have nominated for that particular block.
46 However, it is a matter of common sense that the prisons must be entitled to consider their operational needs when determining that question.
47 A situation in which overtime is coming up as a solution to cover purchased leave is self-evidently one in which resources are being stretched very thin.
48 In such circumstances, upon receiving the officers’ nominations for purchased leave blocks for the 2021/2022 leave year, it was open to the prisons to find that even one officer who nominated for a particular block – or indeed for any block – constituted more than could be accommodated. Such a finding is entirely in keeping with sub-cl 138.7.
49 Based on the evidence of Mr McAteer, Casuarina Prison had always provided purchased leave to officers who had entered PLSAs prior to 2021/2022. In other words, Casuarina was not in the habit of ignoring the process provided for by sub-cl 138.7, and I am satisfied on the balance of probabilities that the other prisons were not in that habit either.
50 Why, then, would they suddenly want to deny entitlements to officers in the 2021/2022 leave year?
51 I infer that they did so because they could not adequately cover all the work they needed done by officers if they provided purchased leave blocks. If even one officer were granted access to a leave block, that was “more than could be accommodated” in the circumstances outlined in the emails constituting the Bundle of Agreed Documents.
52 That being the case, it would have been a pointless exercise to engage in consultation as to who should be allocated leave blocks.
53 What the prisons did do was to take the logical and fair step in the circumstances. They communicated the situation to their officers and gave them the opportunity to withdraw from their PLSAs, so as not to have to wait until the end of the 2021/2022 leave year to recoup their reduced salary. They also gave officers the option of remaining in their PLSAs, in case the situation changed, and the prisons could ultimately accommodate some purchased leave blocks.
54 As it was, the situation did not change throughout the 2021/2022 leave year and officers like Mr McAteer, who had decided to stay in their PLSAs, were refunded the amount of their reduced salary in July 2022. In the case of Mr McAteer, the refund was paid on 21 July 2022. Document produced by the Respondent under Order 1 of 30 November 2022.

55 There has been no contravention of cl 138.
V Conclusion
56 The respondent, via the prisons, complied with cl 138 to the extent that was practicable under all the circumstances.
57 Having determined, based on operational needs and evident resource shortages, that no officer could be accommodated in any of the purchased leave blocks, the prisons did not offer access to any blocks to any officer.
58 Having declined to offer access on the basis that none could be accommodated, the prisons did not consult with officers as to who was to be allocated any particular leave block, because such consultation would have been pointless.
59 Industrial agreements are not intended to force parties to do pointless things. It is contrary to industrial common sense that instruments should be interpreted so strictly that even where compliance with an obligation would be pointless, a party that declines to comply will be found to have contravened the agreement.
VI Order
60 The claim is dismissed.


E. O’DONNELL
INDUSTRIAL MAGISTRATE