2023 WAIRC 00725
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2023 WAIRC 00725

CORAM : INDUSTRIAL MAGISTRATE T. KUCERA

HEARD : TUESDAY, 6 JUNE 2023

DELIVERED : MONDAY, 28 AUGUST 2023

FILE NO. : M 145 OF 2022

BETWEEN : WESTERN AUSTRALIAN PRISON OFFICERS' UNION OF WORKERS
CLAIMANT
AND

MINISTER FOR CORRECTIVE SERVICES
RESPONDENT

CatchWords : INDUSTRIAL LAW – Claim for overtime – Enforcement of State industrial instrument – Alleged breach of instrument – Interpretation of industrial instrument – Analysis of previous industrial agreements – Absence of Principal Officer Monday to Friday Plus Public Holidays classification – Consideration of classification definitions – Consideration of public holidays and ordinary hours of work clauses – Breach found – Claim proven
Legislation : Industrial Relations Act 1979 (WA)
Prisons Act 1981 (WA)
Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA)
Instrument : Department of Corrective Services Prison Officers’ Enterprise Agreement 2010
Department of Corrective Services Prison Officers’ Enterprise Agreement 2013
Department of Corrective Services Prison Officers’ Industrial Agreement 2016
Department of Justice Prison Officers’ Industrial Agreement 2018
Department of Justice Prison Officers' Industrial Agreement 2020
Prison Officers’ Award
Case(s) referred
to in reasons: : Director General, Department of Education v United Voice WA [2013] WASCA 287; (2013) 94 WAIG 1
The Australian Rail Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2017] WAIRC 00830
Target Australia Pt Ltd v Shop Distributive and Allied Employees Association [2023] FCAFC 66
WorkPac Pty Ltd v Skene (2018) 264 FCR 536
Martin Fedec v The Minister for Corrective Services (2017) 97 WAIG 1595
Bluescope Steel (AIS) Pty Ltd v Australian Workers' Union (2019) 270 FCR 359
Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch v Quality Bakers Australia Limited (2003) 83 WAIG 3673
Result : Claim Proven
REPRESENTATION:

CLAIMANT : MR C. FORDHAM (OF COUNSEL)
RESPONDENT : MR R. ANDRETICH (OF COUNSEL) AS INSTRUCTED BY THE STATE SOLICITOR’S OFFICE

REASONS FOR DECISION

1 This case involves an application by the Western Australian Prison Officers’ Union of Workers (Union), alleging a breach of the overtime provisions of an industrial agreement, for work performed on a public holiday (application).
2 The claimant says its member, Maureen Harvey (Harvey), who works as a ‘principal officer’, for the Minister for Corrective Services (Department) at the Karnet Prison Farm (Karnet), should have been paid at overtime rates for work she performed on 26 September 2022, the date a public holiday was observed for the King’s Birthday (claim).
3 The Department denies the claim and says payment for work on public holidays is included in the annual salary a principal officer receives under the Department of Justice Prison Officers Industrial Agreement 2020 (2020 Agreement).
4 By way of relief, the Union seeks an order requiring the Department pay Ms Harvey the sum of $215.51, being the difference between the salary she received for working on the public holiday and the amount she would have received under cl 22.1 of the 2020 Agreement for work at overtime rates.
5 In addition, the Union also seeks the imposition of a pecuniary penalty under s 83(4) of the Industrial Relations Act 1979 (IR Act) for a breach of the 2020 Agreement.
6 The issue to be decided in this matter is whether principal officers under the 2020 Agreement are entitled to be paid at overtime rates on days they are rostered to work on public holidays.
Elements of the claim
7 To succeed in the claim, the Union must establish, on the balance of probabilities, the Department has contravened an entitlement provision, which is defined under s 7 of the IR Act as a provision of an industrial agreement.
8 The entitlement provision in issue is cl 22.1 of the 2020 Agreement which relevantly provides:
22.1 An Officer who is required to perform Overtime, other than in accordance with subclauses 22.3, 22.4 and 22.5, shall be paid at the rate of time and a half the Officer’s Hourly Annualised Rate of Pay for all Overtime hours worked.
9 ‘Overtime’ is a term that is defined in cl 7 of the 2020 Agreement. There are three limbs to the definition, the third of which, (c), applies to Ms Harvey. By this definition, overtime means:
(c) in the case of all other Officers, all work performed by an Officer at the direction of the Employer in excess of the Officer’s rostered hours of work.
10 To succeed in the claim, the Union must prove:
1. Ms Harvey worked on 26 September 2022 (King’s Birthday Public Holiday);
2. the work Ms Harvey performed on the King’s Birthday Public Holiday was in excess of her rostered hours of work; and
3. the Department directed Ms Harvey to work on the King’s Birthday Public Holiday.
Parties’ Evidence
11 Most, if not all of the facts in this matter, were agreed between the parties and drawn from three evidentiary sources. The first was a bundle of agreed documents. The other evidence was provided in two witness statements the parties filed.
12 The Union filed a witness statement from Ms Harvey in support of the claim. The Department filed a witness statement from Peter Vose, who is the Acting Assistant Superintendent of Operations at Karnet. (AASO Vose). No other witnesses were called to give evidence.
13 I have been able to prepare a summary of the facts from the materials the parties filed, which I set out in the paragraphs below.
Summary of Facts
14 Ms Harvey commenced employment with the Department as a prison officer in 2006. From 2006 until around November 2020, Ms Harvey performed shift work, mostly on 12-hour shifts. Ms Harvey worked at a number of prisons, including Casuarina, and the Pardelup Prison Farm. In 2016, Ms Harvey transferred to Karnet, where she remains employed.
15 In or around November 2020, Ms Harvey applied for a promotion and was appointed as a principal officer at Karnet. The terms of Ms Harvey’s appointment are contained in a contract of employment made on 6 November 2020 (contract). A copy of the contract was included in the bundle of agreed documents and marked as ‘exhibit C2’.
16 The contract states the date of her appointment was on 16 November 2020. The contract states her conditions of employment are otherwise regulated by the Prisons Act 1981 and the Department of Justice Prison Officers’ Industrial Agreement 2018.
17 Ms Harvey’s hours of work are 120 over a three-week cycle. It also provides that Ms Harvey may from time to time, be required to vary her hours of work and work patterns, including from non-shift work to shift work. The contract is silent on whether Ms Harvey is required to work on public holidays.
18 When Ms Harvey commenced as a principal officer, Neville Wall, the Assistant Superintendent of Operations (ASO Wall) advised that she would be working eight-hour shifts, Monday to Friday, which is consistent with the working hours and the three-week cycle described in her contract.
19 ASO Wall told Ms Harvey that she would not be required to work on public holidays. From November 2020 to April 2022, Ms Harvey did not usually work on public holidays. She also received her normal salary on these days off.
20 From April to August 2022, Ms Harvey had an extended period of leave for health reasons. When she returned to work in or around August 2022, AASO Vose was in charge at Karnet.
21 AASO Vose told Ms Harvey that she would no longer be permitted to have public holidays off. Ms Harvey understood this to mean that she would be required to attend for work but would not receive any additional pay for working on a public holiday.
22 In his conversation with Ms Harvey, AASO Vose referred to an impending direction contained in a Superintendent’s Guidance Note which would clarify the Department’s view that principal officers are, and were at all material times, required to work on public holidays, including the pending King’s Birthday Public Holiday.
23 Ms Harvey understood from her conversation with AASO Vose, that she was being directed to work on the King’s Birthday Public Holiday. The parties also agreed Ms Harvey was rostered to work on this date, as set out in the posted roster dated 5 August 2022 (roster). A copy of the roster was admitted into evidence and marked as ‘exhibit C3’.
24 On 22 September 2022 the Department issued the Superintendent’s Guidance Note 12 – Public Holidays (Guidance Note). This was included in the bundle of agreed documents and marked as ‘exhibit R2’.
25 The Department says it issued the Guidance Note because it did not have a consistent approach in relation to work on public holidays.
26 On 26 September 2022, Ms Harvey attended work at Karnet in accordance with the roster, which shows she was rostered to work on the King’s Birthday Public Holiday. Ms Harvey was paid her usual salary for all hours worked. In other words, Ms Harvey attended for work on the public holiday and was not paid at overtime rates.
The 2020 Agreement
27 The 2020 Agreement was made between the Union and the Department. 2020 Agreement, cl 3.1 (Parties Bound by the Agreement).
It was registered on 18 December 2020 and has a nominal expiry date of 10 June 2022. 2020 Agreement, cl 5.1 (Term of the Agreement) (requires decision when issued).
The 2020 Agreement applies throughout Western Australia to all Officers who are employed in the classifications set out in Schedule A – Annualised Salary (Schedule A). 2020 Agreement, cl 4.1 (Area and Scope of the Agreement).

28 It is not in dispute that Ms Harvey, in her role as a principal officer at Karnet, is employed in a classification to which the 2020 Agreement applies.
29 By cl 6 (Relationship with Legislation Awards and other Agreements) the 2020 Agreement is a ‘stand-alone’ industrial agreement. This means it operates to the exclusion of all other industrial awards and agreements.
30 More specifically, it is intended the 2020 Agreement will cancel and replace the Department of Justice Prison Officers’ Industrial Agreement 2018 and all other predecessor industrial agreements between the parties. 2020 Agreement, cl 6.3.

31 The 2020 Agreement also replaces, ‘in full’, the Prison Officers Award (Award). To this end, the 2020 Agreement is ‘comprehensive’ and purports to consolidate all relevant Award terms into the agreement. 2020 Agreement, cl 6.2.

Definitions
32 In addition to the definition of ‘Overtime’ cl 7 contains a number of other definitions that are relevant for the purposes of determining whether Ms Harvey, as part of her rostered hours, is required to work on public holidays and be paid overtime.
33 ‘Annualised Salary’ means the salary rate that applies to each classification as set out in Schedule A – Annualised Salaries. The Annualised Salary for Officers working shift work (emphasis added) shall include the Monday to Friday rate for the classification and a component in lieu of shift penalty payments, public holidays and accrued days off. 2020 Agreement, cl 7.

34 ‘Classification’ in cl 7 the 2020 Agreement ‘means the Classifications set out in Schedule A – Annualised Salaries’.
35 Under cl 7, ‘Officer’ means ‘an employee employed in a Classification contained in Schedule A – Annualised Salaries and includes employees engaged on a permanent, probationary, casual or fixed term basis’.
36 A ‘Public Holiday’ is also defined. Clause 7 relevantly provides that it ‘means a day specified in cl 136 – Public Holidays’.
Ordinary hours and remuneration
37 Clause 10.2 of the 2020 Agreement states ‘the basis, duration and agreed ordinary hours of work will be confirmed in writing’. On this, it is uncontroversial, the Department’s issuance of a contract of employment to Ms Harvey was for the purpose of meeting this requirement under the 2020 Agreement.
38 The number of ordinary hours of work to be performed by Officers under the 2020 Agreement is dealt with under cl 19.1, which relevantly provides:
The ordinary hours of work for Officers engaged on a full time basis will be 40 hours per week. 80 hours per fortnight or 120 hours per three weeks unless otherwise agreed by the Union and the Employer.
39 The rate of pay applicable for overtime and the circumstances under which it is paid are covered by cl 22 of the 2020 Agreement. Clause 22.1 requires an Officer to be ‘paid at the rate of time and a half of the Officer’s Hourly Annualised Rate of Pay for all Overtime hours worked’.
40 Part C of the 2020 Agreement deals with ‘Remuneration and Pay Arrangements’. The provisions relevant to the matters at issue in this case are those set out under cl 32.1, cl 32.4 and cl 32.5 as extracted below:
32.1 The Annualised Salary for each Classification, including annual increments and agreed salary adjustments, is prescribed in Schedule A – Annualised Salaries.
…
32.4 The Annualised Salary for Officers working Monday to Friday incorporates payment for ordinary hours of work and Easter Sunday.
32.5 The Annualised Salary for Officers working shift work incorporates the Monday to Friday rate (including Easter Sunday) for the Classification and a component in lieu of shift penalty payments, Public Holidays and Accrued Days Off. Where a total rate is used, individual component parts of penalties, allowances, and base rates should be identified.
41 What cl 32.5 makes clear is the annualised salary for Officers working shift work (emphasis added) specifically provides for the inclusion of a payment for work performed by those Officers on public holidays, which is included in their Annualised Salaries.
42 It is also apparent there is a difference under the 2020 Agreement in the salary received by those Officers who work shift work and those who do not.
Schedule A of the 2020 Agreement
43 Schedule A of the 2020 Agreement not only contains a list of the classifications that are covered by the Agreement, but it also sets out the salaries that are to be paid for the types of rosters to be worked.
44 By way of example, the Annualised Salaries that are to be paid to Prison Officers under Schedule A are separated into two groups; Prison Officer (Mon-Fri) and Prison Officer (Shifts).
45 Schedule A does the same in respect of a number of other classifications listed, including for Senior Officers, principal officers and for Vocational Support Officers (VSO). However, it also lists Annualised Salaries for a number of other classifications employed to work on other rosters.
46 Examples of the other rosters referred to in Schedule A include Annualised Salaries for VSOs (Monday – Friday plus Public Holidays), VSOs (Alternate Weekends 8 Hour) and Principal Officer (Alternate Weekends 10 Hour).
Public Holidays Under the 2020 Agreement
47 Officers’ entitlements in respect of public holidays are set out under cl 136 of the 2020 Agreement.
48 The first two sub-clauses, 136.1 and 136.2, identify the ten days that are to be ‘observed’ as Public Holidays. It is not in dispute that where an Officer is able to observe a public holiday, the Officer is entitled to a paid absence from work, at their ordinary rate of pay.
49 The second two sub-clauses, 136.3 and 136.4, touch on the payment Officers must receive for working on a public holiday.
50 Those parts of cl 136 that are relevant to the matters at issue are set out below:
136.1 For the purposes of this Agreement the following days, or the days observed in lieu shall, be recognised as Public Holidays: New Year's Day, Australia Day, Good Friday, Easter Monday, Anzac Day, Labour Day, Western Australia Day, Sovereign's Birthday, Christmas Day and Boxing Day.
…
136.2 Except where specifically provided for in this Agreement payment for work performed on all Public Holidays is included in an Officer's Annualised Salary.
136.3 Officers who work Monday to Friday and are not required to work Public Holidays will not receive the Public Holiday portion in their Annualised Salary. However, if a Public Holiday falls during such an Officer's annual leave, the Officer will receive a paid day in lieu which will be taken immediately following the annual leave, or at a time mutually acceptable to the Employer and the Officer.
Dispute Over the Interpretation of cl 136
51 One of the matters the parties are at odds over is the interpretation of two of the terms in cl 136. The first of these is the meaning of the words in cl 136.3, ‘except where specifically provided for in this Agreement’.
52 The second arises out of the use of the words ‘Monday to Friday and are not required to work Public Holidays’ in cl 136.4.
53 The need for clarity around the use of the words used in cl 136.3 and cl 136.4 arises because under cl 136.4, Officers who are not required to work on public holidays do not receive an additional payment for, or a ‘portion’, in their annualised salary for working on public holidays. 2020 Agreement, cl 136.4.

Union’s Case
54 The Union argued that cl 136.1 of the 2020 Agreement allows Officers who are in the Monday – Friday classifications referred to in Schedule A to observe public holidays. The Union submitted that this means an Officer employed in one of these classifications is entitled to a paid absence from work.
55 The Union submitted that the 2020 Agreement does not provide for a payment in an annualised salary to principal officers for work on a public holiday because the 2020 Agreement makes no mention of, or reference to, additional remuneration for this work.
56 To this end, the Union submitted that the omission of a reference to a payment for shift penalties, public holidays and the like from cl 32.4, does not mean a component for these items is included in the annualised salary for a Principal Officer (Monday – Friday).
57 The Union argued that a payment in lieu of work on public holidays is not made to Officers in (Monday – Friday) roles (which includes Principal Officers) because it is expected that they will be able to ‘observe’ public holidays. This is to be contrasted with the position of Officers who perform shift work under the 2020 Agreement who will be required to work public holidays.
58 The Union submitted that under cl 7 and cl 32.5 of the 2020 Agreement, Officers who perform shift work are paid an additional component in their annualised salary, in lieu of public holidays. The Union argued the phrase ‘in lieu’ as it appears in cl 7 and cl 32.5, should be taken to mean that a payment is made in substitution for the observance of public holidays.
59 The Union argued the same cannot be said for Officers rostered to work Monday to Friday. This is because the 2020 Agreement contemplates that they will ordinarily be able to observe the Public Holidays referred to in cl 136.1.
60 The Union argued that cl 136.3 of the 2020 Agreement does not apply to principal officers. Rather, it only applies to Officers performing shift work and those identified in Schedule A as working Monday to Friday, plus Public Holidays.
61 It argued the purpose of cl 136.3 is to clarify that an Officer is not entitled to claim any additional amounts, merely because they are, as part of a shift roster, required to work on a public holiday, when other Officers, may be absent from work under the same roster pattern.
62 The Union submitted that cl 136.3 only applies to Officers, who because of their shift roster pattern, are unable to observe public holidays in the manner contemplated by cl 136.1.
63 The Union contended that when cl 136.1 is read together with cl 32.4, work performed on public holidays by principal officers who are employed to work Monday to Friday, is not part of their ordinary hours of work under cl 19 of the 2020 Agreement (Hours of Duty).
64 On the Union’s argument, the observance of a public holiday means work that would otherwise be rostered on a public holiday is not part of the ordinary hours of work of an Officer who is a ‘Monday to Friday employee’ under the 2020 Agreement.
65 The Union argued that any work performed by principal officers outside their ordinary hours of work should be treated as overtime within the meaning of cl 7 and cl 21 (Requirement to Perform Overtime) even though these hours may have been rostered.
66 The Union submitted that the fact Ms Harvey was rostered to work on the King’s Birthday Public Holiday, should not be determinative of whether it is treated as part of her rostered hours or as overtime.
67 The Union submitted that both the roster and the Guidance Note should be regarded as evidence the Department directed Ms Harvey to perform overtime on the King’s Birthday Public Holiday.
Department’s Case
68 The Department submitted that it will be clearly expressed in an industrial agreement if an employee is not required to work on public holidays and is entitled to a paid day off. To this end, the Department provided a number of examples from other public sector awards, each of which contained terms providing for the listed Public Holidays to be taken as holidays with pay.
69 The Department submitted that the 2020 Agreement, in contrast, did not contain a provision conferring a right on Officers to be absent from work on public holidays falling within their regular roster. The Department submitted that Officers are, for this reason, required to work on public holidays.
70 Referring to the definition of ‘Overtime’ in cl 7 of the 2020 Agreement, the Department submitted that as the work Ms Harvey performed on the King’s Birthday Public Holiday was performed on a normal rostered shift, it did not fall within the definition of overtime.
71 The Department similarly referred to the definition of ‘Annualised Salary’ in support of its argument, which ‘means the salary rate that applies to each classification set out in Schedule A – Annualised Salaries’.
72 The Department acknowledged the definition of Annualised Salary for Officers working shift work includes ‘the Monday to Friday rate for the Classification and a component in lieu of shift penalty payments, public holidays and accrued days off’. 2020 Agreement, cl 7.

73 As further support for its argument, the Department referred to and relied upon cl 32.5, cl 136.3 and cl 136.4 to say principal officers like prison officers, who work Monday to Friday, have been compensated for the work they perform on public holidays as part of their rostered hours of work in their Annualised Salaries.
74 The Department also referred to the descriptions of the various classifications in Schedule A, which it said supports the Department’s view that there is nothing in the 2020 Agreement that indicates extra remuneration is to be paid to principal officers for work on public holidays.
75 The Department in its submissions acknowledged the one exception where an express payment is made to compensate Officers for work on public holidays is for the VSO classifications.
76 In Schedule A, the VSO (Monday to Friday) classifications, when compared with classifications for VSO (Monday to Friday plus Public Holidays) receive a lower annualised salary. The Department submitted that the only explanation for the difference is to compensate VSOs for their work on public holidays.
77 The Department argued that it is these specific classifications, to which the words in cl 136.3, ‘except where specifically provided for in this Agreement’, are intended to apply and that payment for public holidays for the balance of the classifications in Schedule A, is otherwise included in the Annualised Salaries paid to principal officers.
78 On the Department’s submission, the Union cannot succeed with its claim, because work performed by Ms Harvey on public holidays forms a part of her rostered hours.
Principles for Interpreting Industrial Agreements
79 In determining whether a party has contravened or failed to comply with an entitlement provision, the Industrial Magistrate’s Court is required to interpret the provisions of an industrial agreement in accordance with the principles that apply to the interpretation of industrial instruments. Director General, Department of Education v United Voice WA [2013] WASCA 287; (2013) 94 WAIG 1. Also see The Australian Rail Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia 2017 WAIRC 00830 at [75].

80 Interpreting an industrial agreement involves ascertaining what a reasonable person would have understood the parties to the agreement to mean. Director General, Department of Education v United Voice WA [2013] WASCA 287; (2013) 94 WAIG 1 per Buss J at [81].

81 The principles for interpreting industrial agreements are well established. They were most recently summarized by a Full Court of the Federal Court of Australia in Target Australia Pty Ltd v Shop Distributive and Allied Employees Association [2023] FCAFC 66 per Bromberg J at [8].
82 Referring to WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [197] His Honour Bromberg J set out these principles as follows:
The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 (Holmes) at 378 (French J). The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 (Amcor) at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).
83 These principles are consistent with those that have been adopted and applied to the interpretation of industrial instruments by the Industrial Appeal Court. Director General, Department of Education v United Voice WA [2013] WASCA 287; (2013) 94 WAIG 1. Also see The Australian Rail Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia 2017 WAIRC 00830 at [75] – [80]. Also see Fedec v the Minister for Corrective Services (2017) 97 WAIG 1595 at [21].
They have also been cited with approval by the Full Court of the Federal Court on numerous occasions. Target Australia Pty Ltd v Shop Distributive and Allied Employees Association [2023] FCAFC at [9].

84 In addition, the Full Bench in Martin Fedec v The Minister for Corrective Services (2017) 97 WAIG 1595 at [22] – [23] also said:
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)).
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].
Evidence as to Context
85 There is sufficient ambiguity in the terms of the 2020 Agreement to warrant a consideration of the surrounding circumstances and the context in which it was negotiated. On this, context may be drawn from the series of industrial agreements that preceded the making of the 2020 Agreement.
86 There are a number of reasons I am able to rely upon the previous industrial agreements for context. Firstly, there are no other direct evidentiary sources to which I can refer about the context in which the 2020 Agreement was negotiated.
87 Neither party provided direct evidence from witnesses about the negotiations which lead to the making of the 2020 Agreement or the intended meaning of the terms they used.
88 None of the parties gave any evidence about the work performed by the various classifications under the agreement and why there is a need for them to work the different types of rosters that can be worked under the 2020 Agreement, or that are referred to in Schedule A.
89 The parties did however, albeit to an incomplete and limited extent, both refer to the industrial instruments that preceded the 2020 Agreement in their submissions and the documents they filed.
90 When having regard to the preceding industrial agreements for context it was necessary for me to review all of them, thereby ensuring the analysis is comprehensive.
91 Secondly, whether by judicial notice or pursuant to reg 35(4) of the Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA), I am permitted to refer decisions of the Commission which ratified these previous agreements, as an admissible extraneous evidentiary source.
92 To this end, I have traced the history and provided an analysis of, the industrial agreements that preceded the 2020 Agreement in the paragraphs that follow.
2010 Agreement
93 In order, the first of these agreements was the Department of Corrective Services – Prison Officers’ Enterprise Agreement 2010 (2010 Agreement). Counsel for the Union referred to the 2010 Agreement in his submissions.
94 The 2010 Agreement is relevant for context because it is the first in the sequence that contains classifications for principal officers.
95 Schedule A of the 2010 Agreement lists the Annualised Salaries that are payable to Officers in the classifications set out. Like Schedule A the 2020 Agreement, it separates Prison Officers into two categories; those on shift and Prison Officers (Monday – Friday).
96 Unlike the 2020 Agreement, the 2010 Agreement is to be read and interpreted wholly in conjunction with the Award. On those matters where it is silent, the 2010 Agreement relies upon the Award.
97 One such example is the composition of an annualised salary. This is provided under cl 26.1 of the Award which states:
All Officers will be paid an annualised salary which will include a component in lieu of shift penalty payments, accrued days off, public holidays and overtime.
98 There are a number of salary classifications in Schedule A of the 2010 Agreement for Principal Officers which include those who work Monday to Friday, and Monday to Friday plus Public Holidays.
99 The salary under Schedule A of the 2010 Agreement for Principal Officers who work Monday to Friday, plus Public Holidays is higher than the salary that applies for Principal Officers (Monday – Friday).
100 This would doubtless be for the reason that Principal Officers (Monday to Friday plus Public Holidays) received additional payments for working on public holidays.
101 Like the 2020 Agreement, Schedule A of the 2010 Agreement includes classifications for VSOs (Monday – Friday) and VSOs (Monday to Friday plus Public Holidays). The VSOs in the latter category also receive a higher salary than those classified as VSOs (Monday – Friday). The additional payment they receive is to compensate them for the work they perform on public holidays.
102 There are no public holiday provisions in the 2010 Agreement. The 2010 Agreement instead relies upon cl 10 of the Award (Public Holidays), the terms of which are much the same as those that appear in cl 136 of the 2020 Agreement.
103 The only material difference between cl 10 of the Award and cl 136 of the 2020 Agreement appears in cl 10.4 which is extracted with the difference in wording highlighted below:
10.4 Prison Officers (Vocational and Support) who work Monday to Friday and are not required to work public holidays will not receive the public holiday portion in their annualised salary. However, if a public holiday falls during such an Officer's annual leave, the Officer will receive a paid day in lieu which will be taken immediately following the annual leave or at a time mutually acceptable to the Employer and employee. Such a day in lieu shall be clearly shown on the duty board…
104 Although cl 10.4 of the Award only applies to Prison Officers (Vocational and Support), it appears obvious, the difference in salaries between both principal officers and VSOs under the 2010 Agreement who are in Monday – Friday classifications and their colleagues who are in Monday to Friday, plus Public Holidays classifications, is that Officers in the latter categories receive a payment for working on Public Holidays.
105 It is therefore reasonable to conclude the reason principal officers in Monday to Friday classifications under the 2010 Agreement receive lower Annualised Salaries than those in in Monday to Friday, plus Public Holidays classifications is because they do not receive a Public Holiday ‘portion’ in their Annualised Salaries.
2013 Agreement and Successor Industrial Agreements
106 On Friday 27 September 2013, the 2010 Agreement was replaced by the Department of Corrective Services Prison Officers’ Enterprise Agreement 2013 (2013 Agreement). The 2013 Agreement had a three-year term which expired on 10 June 2016.
107 The 2013 Agreement is important as context for two reasons, firstly and unlike the 2010 Agreement, it is a stand-alone industrial agreement. To this end, cl 6 (Relationship with Agreements, Award and Legislation) of the 2013 Agreement relevantly provides:
6.1 This Agreement replaces in full the Department of Corrective Services Prison Officers’ Enterprise Agreement 2010.
6.2 This Agreement is a comprehensive Agreement consolidating all relevant Award terms and is intended to replace in full the Prison Officer’s Award. Notwithstanding this intention, if there is any inconsistency between this Agreement and the Prison Officer’s Award, the terms of this Agreement will prevail.
6.3 This Agreement replaces all other registered and unregistered Agreements between the parties on matters the subject of this Agreement.
6.4 This Agreement will be read in conjunction with relevant legislation and regulations.
108 It is apparent from the wording of the 2013 Agreement, and because it is a stand-alone agreement, that much of the Award was either reproduced or incorporated into it.
109 Secondly, the 2013 Agreement is important as context because each of the industrial agreements that superseded and replaced the 2013 Agreement, including the 2020 Agreement are cast in much the same terms.
110 Following its expiry, the 2013 Agreement was, prior to the making of the 2020 Agreement, replaced by the following industrial agreements:
the Department of Corrective Services Prison Officers’ Industrial Agreement 2016 (2016 Agreement);
the Department of Justice Prison Officers Industrial Agreement 2018 (2018 Agreement).
Collectively, I will refer to the 2016, 2018 and 2020 Agreements as the successor agreements.
111 As indicated, most if not all of the clauses that appear in the 2013 Agreement, are the same and repeated in the successor agreements. It is therefore reasonable to conclude the parties, for consistency, would have intended the interpretation of clauses in the Award that previously applied, to have carried over in their application of the 2013 Agreement.
112 It also follows that my conclusions regarding the correct interpretation of the 2013 Agreement would extend and apply to the construction of the successor agreements.
Remuneration and Payment Under the 2013 Agreement
113 Common to the 2013 and successor agreements is a clause headed ‘Part C -Remuneration and Payment Arrangements’. It appears as cl 31 in the 2013 Agreement and is re-produced, unaltered in the 2016 and 2018 Agreements.
114 Clause 31 of the 2013 Agreement, is with one slight change, repeated in the 2020 Agreement. I will return to this variation later in these reasons.
115 In the 2013 Agreement, cl 31.1 and cl 31.2 are set out as follows:
31.1 The annualised rate of pay for Officers working Monday to Friday shall include only wages for ordinary hours of work.
31.2 The annualised rate of pay for Officers working shiftwork shall include the Monday to Friday rate for the Classification and a component in lieu of shift penalty payments, Public Holidays and Accrued Days Off.
116 Like the successor agreements, the 2013 Agreement has a Schedule A setting out the annualised salaries for the classifications listed and the type of rosters described. The definitions, hours of work, and overtime provisions are the same across the agreements.
117 A further feature of the 2013 Agreement that is also common to the successor agreements, is the fact there are no ‘Principal Officer Monday to Friday plus Public Holidays classifications as there were under the 2010 Agreement.
Absence of a Principal Officer Monday to Friday Plus Public Holidays Classification from the 2013 Agreement
118 It is not clear why Schedule A of the 2013 Agreement does not contain a Principal Officer (Monday to Friday plus Public Holidays) classifications. This situation was repeated in the successor agreements.
119 On the Department’s argument, the absence of these classifications is because the requirement for principal officers to work on public holidays under the 2013 Agreement and successor agreements was rolled into or included in their rostered hours.
120 There are however a number of reasons why I do not accept this construction. First, if the parties had intended to stipulate that principal officers were required to work on public holidays for which they would receive no additional payment, the 2013 Agreement and the successor agreements would have included express provisions to this effect.
121 Secondly, such a construction, particularly in the absence of an express provision which clarifies that principal officers working Monday to Friday are required to work on public holidays as part of their roster hours for which they would receive no additional payment, is inconsistent with cl 31.1 of the 2013 Agreement.
122 Thirdly, if principal officers were required to work on public holidays, it would follow that the annualised salaries carried over from the 2010 Agreement, to which the wage increases under the 2013 Agreement and the successor agreements were applied, would be the annualised salary rates for the Principal Officer (Monday to Friday plus Public Holidays).
123 However, this is not what happened. The rates from the 2010 Agreement for the Principal Officer (Monday to Friday) classifications, to which the wage increases were applied in the 2013 Agreement, were the Monday to Friday rates, which did not include a ‘portion’ for working on public holidays.
124 It is highly unlikely, the parties would, in the context of a robust and established industrial relationship, have made an agreement that would in effect require principal officers to be rostered to work on public holidays, for which they would receive no additional payment.
125 The better explanation is what the evidence points to. Principal officers would, as occurred with Ms Harvey in the period following her promotion to the role until August 2022, be entitled to paid days off for public holidays.
Clause 31.1 and the Ordinary Hours of Work
126 For those classifications in the 2013 Agreement, like VSOs or principal officers who are described in Schedule A as Monday – Friday, cl 31.1 makes it plain, their annualised salary includes only wages for ordinary hours of work.
127 Although not specifically defined in the 2013 Agreement or the successor agreements, it is generally accepted that the term ‘ordinary hours of work’ refers to standard hours of work referred to in an industrial agreement that are paid at ordinary rates, as opposed to additional hours (even if required, usual, regular, normal or customary) that are paid at a special or higher rate. Target Australia Pty Ltd v Shop, Distributive and Allied Employees Association [2023] FCAFC 66 Bromberg J at [10] – [16] with whom Jackson and Feutrill agreed. Also see Bluescope Steel (AIS) Pty Ltd v Australian Workers Union (2019) 270 FCR 359 Allsop CJ at [38].

128 In the context of the 2013 Agreement and the successor agreements as a whole, the standard or ordinary hours of work are 40 per week. This means that Officers in Monday to Friday classifications are in effect paid an annualised salary for working a 40 hour week on week days, during normal business hours.
129 It also means these Officers do not receive payment for working the shifts that attract the penalties and additional payments that work on night shifts, weekends and Public Holidays do because they do not form a part of their rostered hours.
Clause 31.1 and Payment for Work on Mondays to Fridays plus Public Holidays
130 For Officers employed in the classifications under the 2013 Agreement, who perform shift work or in other classifications such as VSOs (Monday – Friday plus Public Holidays), cl 31.1 when read together with Schedule A, similarly makes it plain these Officers receive payment for working on public holidays.
131 Counsel for the Department acknowledged in his submissions that the annualised salaries for VSO classifications in Schedule A of the 2020 Agreement, performing work Monday – Friday plus, Public Holidays are higher because they include an additional payment for work performed on these days.
132 Regarding this, counsel for the Department submitted:
But if you go to Level 2 VSO, it specifically provides that this is a rate that gets paid extra for public holidays. I think it’s a 2,3 and 4. A Level 2 VSO plus public holidays. So they get paid extra for working public holidays, which can only mean that the Level 2 VSO Monday to Friday don’t, otherwise its meaningless to have that classification that refers to “Plus public holidays” (ts 21).
133 As the wording in Schedule A of the 2013 Agreement is the same in the successor agreements, it is reasonable to conclude this explanation for the difference in VSO salaries would be consistent across the agreements.
134 It is also reasonable to conclude that rather than creating an exception for VSO classifications cl 31.1 of the 2013 Agreement, required all of the Monday to Friday classifications to be treated the same.
Clause 31.1 and the Public Holiday Clause
135 Clause 10 of Award (Public Holidays) is reproduced in the 2013 Agreement as cl 132. The clause is retained in the 2020 Agreement as cl 136.
136 Under the 2013 Agreement cl 132 relevantly provides:
132.1 For the purposes of this Agreement the following days, or the days observed in lieu shall, be recognised as Public Holidays: New Year's Day, Australia Day, Good Friday, Easter Monday, Anzac Day, Labour Day, Western Australia Day, Sovereign's Birthday, Christmas Day and Boxing Day.
…
132.1 Except where specifically provided for in this Agreement payment for work performed on all Public Holidays is included in an Officer's Annualised Salary.
132.2 Officers who work Monday to Friday and are not required to work Public Holidays will not receive the Public Holiday portion in their Annualised Salary. …
137 When cl 31.1 is read together with cl 132 of the 2013 Agreement, the clear purpose of the public holidays clause is two-fold.
138 Firstly, cl 132.1 specifies the days that are to be ‘observed’ and taken as paid days off by those Officers who do not receive payment for public holidays as part of their annualised salaries. That is because their annualised salary only includes payment for ordinary hours of work.
139 Secondly, the clause gives meaning to words ‘except where specifically provided’. In the context of the 2013 Agreement as a whole, cl 132.3 explains that an extra payment made to those Officers who work public holidays as part of their roster, which they would otherwise be paid, in addition to their wages for working ordinary hours, is included in their annualised salaries.
140 Put another way, cl 31 and cl 132 of the 2013 Agreement, when read together with Schedule A, explain why Officers performing shift work are paid more than those who are employed in Monday to Friday classifications.
141 It also explains why higher annualised salaries are paid to Officers who are in Monday to Friday plus Public Holiday classifications or in roles where they are rostered to work on weekends.
142 When interpreted this way, it follows the words under cl 132.4 ‘and are not required to work Public Holidays will not receive the Public Holiday portion in their Annualised Salary’, are intended to describe what happens to an Officer who is only paid an annualised salary for working Monday to Friday.
143 It is reasonable to conclude the Officers in these classifications are not only entitled to have public holidays as paid days off, but they do not receive the additional payment that Officers, who are rostered to work on public holidays get in their Annualised Salaries.
144 This construction of the Public Holidays clause in the 2013 Agreement, which is repeated in the successor agreements, is preferable, because it gives each of the relevant parts of the clause, work to do and allows for a harmonious interpretation of the instrument as a whole.
Overtime and Clause 31.1 of the 2013 Agreement
145 Clause 31.1 of the 2013 Agreement, in the context of the agreement as whole, is significant for the reason that it confirms public holidays do not form a part of the rostered hours for Officers who are employed in Monday to Friday classifications.
146 While the term ‘rostered hours’ is not defined in the 2013 Agreement, it does contain quite extensive rostering provisions that allow shifts to be arranged on a continuous basis.
147 It seems self-evident that rostered hours are not limited to or only mean, ordinary hours for every classification under the 2013 Agreement. Even though rostered hours could include hours in addition to or other than, ordinary hours as part of a continuous rotating shift work roster, an Officer’s ordinary hours because of what they are paid by way of an annualised salary could be their rostered hours too.
148 As the annualised salary for Officers in Monday to Friday classifications under the 2013 Agreement only includes wages for ordinary hours of work (emphasis added) it follows that where Officer is employed in a Monday to Friday classification, work on public holidays would be additional to or in excess of, an Officer’s rostered hours.
149 Having reached this conclusion, it also follows that work on a public holiday, would fall within the third limb of the definition of ‘Overtime’ under cl 7 of the 2013 Agreement, thereby attracting the overtime payment that applies under cl 21 of the 2013 Agreement.
2016 and 2018 Agreements
150 As I have noted, the successor agreements were each cast in much the same terms as the 2013 Agreement. They each include the same terms dealing with definitions, annualised salary, hours of work, rostering and public holidays.
151 Importantly, the 2016 and 2018 Agreements both contain provisions equivalent to cl 31.1 of the 2013 Agreement.
152 Clause 31.3 of the 2016 Agreement provides:
31.3 The Annualised Salary for Officers working Monday to Friday only incorporates payment for ordinary hours of work.
153 Similarly, cl 32.4 of the 2018 Agreement contains the following term:
32.4 The Annualised Salary for Officers working Monday to Friday only incorporates payment for ordinary hours of work.
154 The general wage increases under the 2016 and 2018 Agreements for the Principal Officer (Monday to Friday) classifications, were applied to the annualised salaries for the equivalent classifications that appear in Schedule A of the 2013 Agreement.
155 Like Schedule A of the 2013 Agreement, Schedule A of both the 2016 and 2018 Agreements, does not contain classifications for Principal Officer (Monday to Friday plus Public Holidays).
156 As there is no material difference between the 2013 Agreement and the 2016 and 2018 Agreements that followed, it is reasonable to conclude the parties would have intended to apply the agreements in the same way.
157 It is therefore reasonable to conclude that a result of the consistency in wording that appears in cl 31.1 in each of these agreements, the Annualised Salaries for Principal Officers (Monday to Friday), make no express provision for work on public holidays.
158 This means work on public holidays for Principal Officers in Monday to Friday classifications, under the 2016 and 2018 Agreements, is additional to or in excess of, an Officer’s rostered hours.
Clause 32.4 of the 2020 Agreement
159 The 2020 Agreement contains a provision that is similar to cl 31.1 of the 2013 Agreement. It appears as cl 32.4 and reads as follows:
32.4 The Annualised Salary for Officers working Monday to Friday incorporates payment for hours of work and Easter Sunday.
160 The word, ‘only’ which appears in the equivalent clauses of the agreements that preceded the 2020 Agreement was omitted from cl 32.4.
161 The question the change in wording raises, is whether the omission and the addition of payment for Easter Sunday was made with the intention of including public holidays in both the rostered hours and remuneration for the classification of Principal Officers (Monday to Friday).
162 I do not however accept that the parties made a conscious decision to alter its previous arrangement. I make this finding because there were no other material changes the parties made to the 2020 Agreement that lend support for this view.
163 Having undertaken an analysis of the industrial agreements the parties made prior to the 2020 Agreement, it is clear the terms dealing with definitions, Annualised Salaries, hours of work, rostering and public holidays were not changed.
164 It is doubtful the parties would have removed one word with the effect depriving Officers of 10 paid days off for public holidays without compensating them for the corresponding loss of entitlements or clarifying this change with the inclusion of an explanatory term.
165 The change in salaries between the 2018 and the 2020 Agreements do not reflect this change either. The increase in salary rates under the 2020 Agreement was as a result of the application of the $1000 per annum general wage increases and the addition of a paid day for Easter Sunday, to the annualised salary rates from the previous agreements.
166 None of the agreements I reviewed for context contain a term giving clear expression to the requirement for Principal Officers (Monday to Friday) to work on public holidays. If this is what the parties had intended, they would have included an express term to this effect. Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch v Quality Bakers Australia Limited (2003) 83 WAIG 3673.

Parties Evidence Regarding Principal Officers and Public Holidays
167 Secondly, a change to the practice requiring principal officers to work on public holidays by the omission of the word ‘only’ from cl 34.4 of the 2020 Agreement, is not supported by the parties’ evidence.
168 The evidence does not reveal that it is so obvious it went without saying, the parties had agreed that Principal Officers (Monday to Friday) would be required to work on public holidays as a result of changes made to the 2020 Agreement.
169 On the contrary, it appears to have been understood and accepted industrial practice that principal officers at Karnet, would be able to, and did, access the entitlement under cl 136.1 to paid days off for public holidays.
170 I was not assisted by the witness statement from AASO Vose. His evidence was of limited value because it was more in the nature of an opinion or a submission. Despite his previous involvement as Union delegate, he was unable to provide any direct evidence about the parties’ intentions at the time the 2020 Agreement was made.
171 The assertions AASO Vose made regarding the inclusion of payments in the Annualised Salaries of Principal Officers (Monday to Friday) for working on public holidays are also contradicted by what is in cl 31.1 of the 2013 Agreement and the equivalent clauses that were repeated in the successor agreements.
172 His evidence was also contradicted by the historical analysis of the salaries that are contained in Schedule A of each of the industrial agreements that I reviewed to reach findings on the context in which the 2020 Agreement was made.
Work on Public Holidays in Excess of Rostered Hours
173 It is my view that despite the omission of the word ‘only’ from cl 31.1 of the 2020 Agreement, the clause should be interpreted the same way as it appears in the equivalent provisions of the 2013, 2016 and 2018 Agreements.
174 The clause when read in the context of the agreement as a whole, confirms the Annualised Salaries that appear in Schedule A for the classification of Principal Officer (Monday to Friday) is only for ordinary hours and that payment for working on public holidays is not included in those Officers’ Annualised Salaries.
175 The rostered hours for a Principal Officer (Monday to Friday) are, by reason of the salary prescribed in Schedule A, the ordinary hours for that classification. An Officer who is only paid an Annualised Salary for working ordinary hours, does not receive the portion in their Annualised Salary that is referred to in cl 136.3 for working public holidays.
176 As Principal Officers (Monday to Friday) are not paid for working on public holidays, it follows these days would fall outside their rostered hours.
177 For this reason, I have concluded that public holidays do not form a part of the rostered hours for Principal Officers in Monday to Friday classifications. As a result, the work Principal Officers (Monday to Friday) perform on public holidays would fall within the definition of ‘Overtime’ under cl 7 of the 2020 Agreement. That is, work performed on Public Hoidays would be ‘in excess of the Officer’s rostered hours of work’.
178 For these reasons, I am satisfied the Union has, on the balance of probabilities, proved that Ms Harvey’s work on the King’s Birthday Public Holiday was in excess of her rostered hours.
Overtime at the Employers Direction
179 I am also satisfied the Union has, on the balance of probabilities has proved the Department directed Ms Harvey to work on the King’s Birthday Public Holiday.
180 It is clear from the witness statement AASO Vose provided, that as early as August 2022, he had verbally made Ms Harvey aware of the requirement for her to work on the King’s Birthday Public Holiday. From this evidence, I am satisfied the Department directed Ms Harvey to work on this public holiday,
181 I also accept that Ms Harvey’s inclusion on the roster is evidence that she was directed to work on the King’s Birthday Public Holiday. The issuance of the Guidance Note which sets out the requirement for principal officers to work on public holidays, which applied to Ms Harvey, adds further weight to this conclusion.
Conclusion
182 Having established Ms Harvey was directed to work on the King’s Birthday Public Holiday, she attended work as directed and the work that she performed on this day was in excess of her rostered hours, I have concluded the Department should have paid Ms Harvey at overtime rates for working on a public holiday.
183 By not paying Ms Harvey at overtime rates for her work on the King’s Birthday Public Holiday, the Department has breached cl 22.1 of the 2020 Agreement.
184 Having reached this decision, I intend to make an order under s 83 of the IR Act requiring the Department to pay the difference between the overtime rates she was entitled to receive under cl 22.1 and the wages she has already received for working on the King’s Birthday Public Holiday.
185 I will also hear from the parties as to whether any further orders under s 83 of the IR Act should issue regarding the Department’s breach of cl 22.1 of the 2020 Agreement.


T KUCERA
INDUSTRIAL MAGISTRATE