INTERPRETATION OF CLAUSE 80 OF THE DEPARTMENT OF JUSTICE PRISON OFFICERS' INDUSTRIAL AGREEMENT 2020

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00773

DELIVERED : Friday, 22 September 2023

FILE NO. : APPL 18 OF 2021

Applicant

AND

Minister for Corrective Services

Respondent

CatchWords : Interpretation of industrial agreement – s 46 Industrial Relations Act 1979 (WA) – The Department of Justice Prison Officers’ Industrial Agreement 2020 – cl 80 – annual leave – principles that apply to interpretation of agreements

Legislation : Industrial Relations Act 1979 (WA): s 46(1)(a)

  Minimum Conditions of Employment Act 1993 (WA): s 5, s 8, s 25

Result : Declaration issued

Representation:

Counsel:

Applicant : Mr C Fordham (of counsel)

Respondent : Mr R Andretich (of counsel)

Case(s) referred to in reasons:

(Commission’s own motion) v Dardanup Butchering Co [2004] WAIRC 2739; (2004) 84 WAIG 2739

Re Harrison; Ex parte Hames [2015] WASC 247

Western Australian Prison Officers’ Union of Workers v Minister for Corrective Services [2020] WAIRC 00430; (2020) 100 WAIG 1174

Western Australian Prison Officers’ Union of Workers v Minister for Corrective Services [2023] WAIRC 00016; (2023) 103 WAIG 93

Reasons for Decision

1         This is an application by the Western Australian Prison Officers’ Union of Workers (Union) for interpretation and a declaration under s 46(1)(a) of the Industrial Relations Act 1979 (WA) (IR Act) of cl 80 of the Department of Justice Prison Officers’ Industrial Agreement 2020 (Industrial Agreement).

2         Clause 80 of the Industrial Agreement deals with ‘annual leave rosters’. Annual leave rosters follow a specified structure but are developed and managed by the local Superintendent.

3         Clause 80 says that it ‘shall apply to all Officers who will be divided into groups’. It explains that annual leave rosters operate on either 6 or 8 year cycles, with each year being divided into 6 or 8 week periods. These periods are assigned a letter, for example A, B, C and so on. When a prison officer begins employment at a prison, ‘an Officer’s position on the leave roster will be confirmed in writing in an Annual Leave Letter’. Clause 80.5 allows a prison officer, who has ‘special reasons for doing so’, to apply to take annual leave at a time other than as set out in the annual leave roster.

4         The parties disagree about whether a prison officer is required to take annual leave during the period that prison officer is assigned on the annual leave roster.

5         The Union argues that the effect of cl 80 is that a prison officer has three options in relation to annual leave: take annual leave in accordance with that prison officer’s position on the annual leave roster, apply to take annual leave at a time other than as set out in the annual leave roster or choose not to take annual leave during that prison officer’s rostered period.

6         The Minister argues that cl 80 is intended to require prison officers to take annual leave that they accrue in any leave year at the time allocated to them in the annual leave roster.

Question to be decided

7         The Union asks the Commission to decide ‘whether the true meaning of cl 80 of the Department of Justice Prison Officers’ Industrial Agreement 2020 is that prison officers are, as a condition of employment, subject to cl 80.5, to take their annual leave that accrues during the Leave Year at the time determined by the annual leave rosters developed in accordance with cl 80.’

8         At the hearing the Union confirmed that it no longer pressed the second question in its application, which related to whether cl 80 prescribes a condition for the use of annual leave that is less favourable than those under the Minimum Conditions of Employment Act 1993 (WA) (MCE Act).

Background

9         The parties did not call any witnesses. They filed a bundle of agreed documents and the following statement of agreed facts:

1. The Applicant and the Respondent are both parties to the Department of Justice Prison Officers’ Industrial Agreement 2020 (Agreement).

2. Amongst other things, the Agreement provides the terms and conditions applicable in respect of annual leave for officers (officers) who are employed by the Respondent in any of the positions listed in the Agreement at Schedule A.

3. Under clause 80.1 of the Agreement, each prison operated by the Respondent is to prepare an annual leave roster that is derived from one of the two examples that are listed within that sub-clause, namely –

a. The ‘Eight Year Cycle’ roster (eight-year cycle roster); or

b. The ‘Six Year Cycle’ roster (six-year cycle roster).

4. The eight-year cycle roster applies to officers who ordinarily work at a prison that is located south of 26 degrees south latitude.

5. The six-year cycle roster applies to officers who ordinarily work at a prison that is located north of 26 degrees south latitude.

6. Under clause 80.1 of the Agreement, the six-year cycle roster and the eight-year cycle roster provide that –

a.  Officers on commencement are to be assigned by an Annual Leave Letter into a group (groups are numbered A to H in the case of an eight-year roster, and groups are numbered A to F in the case of a six-year roster);

b.  Officers within each group have according to their Annual Leave Letter a specific period in the roster within which to take annual leave, which period(s) are to commence at set intervals during the leave year;

c.  In the case of a six-year roster, the duration between the commencement of each interval is 8 weeks. In the case of an eight-year cycle roster the duration between the commencement of each interval is 6 weeks.

7. The eight-year cycle roster referred to in clause 80.1 of the Agreement provides a pattern that is repeated every 8 years. An example of the full cycle of the eight-year cycle roster is illustrated in the table below –

8. The six-year cycle roster referred to in clause 80.1 of the Agreement provides a pattern that is repeated every 6 years. An example of the full cycle of the six-year cycle roster is illustrated in the table below –

9. The practical effect of the eight-year cycle roster pattern is that officers may be assigned yearly leave intervals that commence between 40 to 64 weeks apart, depending on the position on the roster cycle.

10. The practical effect of the six-year cycle roster pattern is that officers may be assigned yearly leave intervals that commence between 36 and 68 weeks apart, depending on the position on the roster cycle.

11. The effect of the current policy position of the Respondent is that, subject to the other provisions of the Agreement, an officer is required to take his or her full yearly entitlement of annual leave as rostered.

12. The Respondent’s policy position contemplates that an officer who is required to take leave strictly in accordance with his or her leave roster may fall into negative leave balance.

10      At the hearing, the Union agreed not to press its application for leave to lead additional evidence in circumstances where the parties agree that there is a practice of prison officers being expected to apply for annual leave. The Union says this is a neutral fact and does not ask the Commission to make anything of it.

11      At the hearing, counsel for the Union said: ‘the applicant doesn’t dispute the general proposition that the framework in clause 80 provides restriction on taking leave outside that framework. What’s in dispute is whether an employee is required to take his or her full yearly allotment.’

Industrial Agreement provisions

12      Clause 80 of the Industrial Agreement provides:

80. Annual Leave Roster

80.1 The following annual leave rosters shall apply to all Officers who will be divided into groups. The actual annual leave dates may vary from Prison to Prison.

Southern Prisons (Eight Year Cycle)

Northern Prisons (Six Year Cycle)

80.2 The leave roster shall commence on a date each Leave Year agreed between the parties and shall continue in the order shown for the Leave Year with each group commencing at six or eight week intervals. An Officer who commences employment subsequent to the introduction of the leave roster shall be allocated to a group and shall have the option of taking the balance of the year's annual leave in advance in addition to taking their annual leave already accrued.

80.3  Annual leave rosters to be developed and managed by the local Superintendent, subject to the annual block sequence and principles in this Agreement being followed.

80.4 An Officer's position on the leave roster will be confirmed in writing in an Annual Leave Letter on commencement at a Prison.

80.5  An Officer who has special reasons for doing so may apply to the Employer in writing, to take annual leave at a time other than as set out in the leave roster. If the application is approved a new date for the commencement of the annual leave must be agreed in writing at the time the application is made. If the application is approved the Officer will be deemed to have taken the leave in accordance with the leave roster.

80.6 The non-leave period will be made up of three weeks and six weeks in any order over a three year period.

13      Clause 81 of the Industrial Agreement provides:

81. Annual Leave Letter Procedures for Transfers and Promotions

81.1 An Officer who is Transferred or promoted to another Prison shall be allocated a new Annual Leave Letter where there is an irresolvable conflict between that Prison's established leave roster and the Officer's original Annual Leave Letter, provided that:

 (a) the Officer was notified of the conflict before the Transfer or promotion; and

(b) the Employer, before issuing the new Annual Leave Letter, takes into consideration travel bookings, travel deposits paid and any other circumstances which makes it imperative for the Officer to take their annual leave at the time prescribed by their original Annual Leave Letter.

81.2 The allocation of a new Annual Leave Letter that places an Officer with an immediate second annual leave period in the same Leave Year is to be avoided.

14      The Industrial Agreement defines Annual Leave Letter and Leave Year:

Annual Leave Letter means the letter issued by the Employer to an Officer in accordance with clause 80 - Annual Leave Roster and clause 81 - Annual Leave Letter Procedures for Transfers and Promotions.

Leave Year means 1 July to 30 June.

The Union’s submissions

15      In essence, the Union says that cl 80 of the Industrial Agreement provides a framework by which the Minister can assign discrete blocks of time each year within which an employee may agree to go on annual leave, but cl 80 does not require an employee to go on annual leave.

16      The Union says that the rostering provisions are critical to understanding how annual leave provisions work under the Industrial Agreement. This includes rostering of hours, which impacts on how leave intervals are managed by a prison.

17      The Union made detailed oral submissions about the effect of rostering provisions, including cl 7, 27, 31, 32 and 79. Depending on a prison officer’s shift pattern and work location, she will be entitled to between 5 and 7 weeks’ annual leave each year, with up to an extra five days of travel leave under cl 85 to be taken when annual leave is taken, if certain travel arrangements are made.

18      The Union says not every prison officer will use ‘leave that extends for the full period of the interval of a leave roster’. Further, cl 82 allows a prison officer to take up to five days as individual days of annual leave. The Union says this means:

[A] person may have, depending on where they’re stationed and what type of roster they’re working, they may have between five or maybe less than five, if they’ve used five days of annual leave. They may have as low as four weeks of annual leave and as much as five at the time that they take leave, and that will depend on whether they’re a Monday to Friday worker, whether they’re located remotely or not, whether they’ve taken single days of annual leave and if they qualify for travel time.

19      In relation to cl 80.6, the Union says it is significant that ‘non-leave period’ is not defined. The Union argues that ‘non-leave period’ refers to the period in an interval when annual leave is not taken. This means that the Industrial Agreement clearly contemplates that some employees will not take annual leave. Clause 9(1)(g) of the Industrial Agreement provides: ‘Every officer will be treated fairly and equitably in an environment that fosters communication, involvement and teamwork.’ The Union says that cl 9(1)(g) means that it is up to the employee to decide whether to take annual leave. Counsel for the Union stated:

So clause 9.1G says that everyone's to be treated fairly and equitably. And so what we – the importance of that for this particular clause is to say that it can't be contemplated by the agreement that the employer will decide who is going to take their full complement of leave and who isn't, and how that fits in within the non-leave period. Because you will have – inevitably, you will have some employees who have a full six week allotment available to them. Some may have five weeks. Even though they're a shift worker, they may have used five repay days. Some may have five days – five weeks and three days. There has to be some system that works it out equitably, and it can't be the case that the employer is to simply decide for everybody. There has to be a uniform approach. And the uniform approach has to be that the employees decide for themselves how much leave they will take within the confines of the agreement and keeping that non-leave period suitable enough so it works in with the rostering arrangements.

20      The parties agree that prison officers take annual leave in advance. The Union submits that:

[I]n reality, what is occurring is that a person is being told to go on paid leave, not being annual leave, and that there is then a debt recorded against that person. And that’s referred – the debt is referred to in clause 79.7. And the debt is equivalent to annual leave, but in a negative context, in this context of taking leave in advance, it leaves a person with a negative leave balance, meaning that they’ve got a negative debt equivalent to a certain number of hours of annual leave.

However, the Union says ‘in reality, taking leave in advance, we say, cannot happen’, because annual leave accrues incrementally over weeks, so it is not possible to take an entitlement which does not yet exist. Further, the Union says that the MCE Act prevents an employer from requiring an employee to forgo annual leave that has yet to occur.

21      The Union says the provisions of the Industrial Agreement ‘should be construed in a way that makes them lawful’. The Union argues that there is ‘no problem’ with prison officers taking leave in advance when they start at a new prison and paying that leave back later. But the employer cannot require prison officers to take leave in advance every year. To do so would be contrary to the MCE Act, which the Union says weighs against the Minister’s construction.

22      The Union also argues that the timing of the Annual Leave Letter weighs against the Minister’s construction. In oral submissions, counsel for the Union argued that although the Industrial Agreement does not say this, it is sensible to interpret the Industrial Agreement to mean that an Annual Leave Letter is given every single year, to confirm when a prison officer takes annual leave that year. The Union says the description ‘annual’ in relation to Annual Leave Letter suggests that the Annual Leave Letter will be given annually.

23      The Union says that because it cannot be known in advance how much annual leave a prison officer will have, for example if they change from being a ‘Prison Officer (Mon – Fri)’ to being a ‘Prison Officer (Shifts)’, then the Industrial Agreement cannot contemplate that the prison officer will take an unknown amount of annual leave. This is because the annual leave must fit in with cl 80.6 of the Industrial Agreement. The non-leave period must be in 3 or 6 week blocks. That cannot be planned in advance if it is not known in advance.

24      In oral submissions in reply, counsel for the Union appeared to concede that a plain reading of the Industrial Agreement does not lead to the conclusion that the Annual Leave Letter will be given annually. He said when an Annual Leave Letter is given, it cannot be known how much annual leave a person will have at the time the leave letter ‘falls due’, because of cl 82 and cl 85. The Industrial Agreement contemplates that someone must decide the non-leave period under cl 80.6 and the Union says that person must be the prison officer. The Union submits that cl 80.6 is an instruction to employees to formulate their applications for leave so that they do not interfere with the averaging that applies to shift workers.

25      The Union says there is nothing in the Industrial Agreement that says either way whether a person will take all, none or some of their annual leave, but some of the provisions of the Industrial Agreement contemplate that not all leave will be taken, for example the provisions in relation to purchased leave.

26      The Union relies on the principles and approach to interpretation set out in Western Australian Prison Officers’ Union of Workers v Minister for Corrective Services [2020] WAIRC 00430; (2020) 100 WAIG 1174 at [5] and Re Harrison; Ex parte Hames [2015] WASC 247 at [50] – [51] and argues that the Commission should ascertain the objective intention as expressed by the terms of the Industrial Agreement considered as a whole, in a way what makes the various parts of the agreement harmonious, and if possible, such that each has some work to do.

27      The Union argues that the purpose of cl 80 is to ‘set out the arrangements for the allocation and approval of dates for individual officers to use their accrued annual leave entitlements.’

28      The Union says under cl 80.3 and cl 80.5, the Minister has management authority to agree to a request to depart from the roster where additional absences may be tolerated. Further, cl 80.2 and cl 80.5 suggest that there is minimal employer discretion in the formulation of leave arrangements, and ‘that the need for the Employer to individually examine leave arrangements is generally only enlivened where a prison officer wishes to take a specific period of leave at a time that falls outside the allocated roster interval.’ The Union argues that there is an objective intention to provide an equitable distribution of leave across the workplace, as shown by the relatively fixed roster cycle.

29      The Union submits that where a prison officer cannot convince the employer that there should be a change to the roster because of special circumstances, and if the prison officer does not want to take annual leave during the period of her Annual Leave Letter, then the only remaining option for the prison officer is simply not to take accrued annual leave at all during a Leave Year.

30      Critically, the Union argues cl 80 shows that an employee has exclusive discretion to decide not to use accrued annual leave, because:

a. cl 80 does not limit the accumulation of annual leave from year to year;

b. cl 80 does not contain express words setting out when and in what circumstances the employer can direct a prison officer to start a period of accrued annual leave in accordance with the annual leave roster, or not in accordance with the roster;

c. cl 80 does not provide any guidance or process by which a prison officer can apply to not use her accrued annual leave (original emphasis); and

d. cl 80.6 provides guidance about how a prison officer can chose to not use her accrued annual leave for each contemplated year of the Industrial Agreement term.

31      The Union argues that the objective intention of cl 80 does not require or imply that the employer ‘has an additional discretionary power to compel officers’ to take their annual leave at the times allocated by the Annual Leave Letter. Rather, the Union says the annual leave roster system is simply concerned with the mechanics of evenly distributing annual leave for a large number of employees, and there is nothing in cl 80 to suggest that the annual leave roster system is concerned with the management of a prison officer’s annual leave balance that may accumulate from year to year.

32      The Union made a number of submissions in relation to harmony with surrounding clauses and with other clauses in the Industrial Agreement. In effect the Union submits that there are no other provisions within the Industrial Agreement dealing with annual leave that suggest the employer can compel a prison officer to take annual leave or restrict the accumulation of a balance of accrued annual leave. Further, the Union points to the clause of the Industrial Agreement that deals with long service leave and says that the Industrial Agreement provides that a prison officer makes an application to take long service leave. If the application is refused, the prison officer and employer confer for up to four weeks. If they do not agree, the employer can direct the prison officer under cl 119.1 to take an amount of accrued long service leave from a date the employer choses.

33      The Union says cl 120.1, which relates to the duration of long service leave, indicates that leave is generally intended to be taken by agreement between the prison officer and the employer. The Union argues that the terms of the Industrial Agreement do not indicate that the employer’s power to direct a prison officer to take long service leave is intended to manage a prison officer’s accumulated leave.

34      The Union also points to cl 138 of the Industrial Agreement which is about purchased leave. The Union says this type of leave is distinguished from other types of leave in the Industrial Agreement, because the clause shows an intention to consider or manage a prison officer’s total leave balance.

35      Accordingly, the Union says cl 119 and cl 138 support the following:

a. generally discretionary types of leave like annual leave are to be taken by agreement between the employer and the prison officer;

b. where arrangements for the use of a discretionary type of leave cannot be made by agreement, then a prison officer can decide whether to use the leave at all;

c. the Industrial Agreement contains very few provisions that are designed to limit or empower the employer to manage a prison officer’s accumulated leave balance;

d. it is exceptional, rather than the norm, that the employer be able to compel a prison officer to take a period of leave, and is a power only to be used for a specific purpose; and

e. where the employer has a power under the Industrial Agreement to compel a prison officer to take a period of leave, the Industrial Agreement ‘will spell out that power in clear terms’.

36      The Union says the answer to the question is ‘No’ and the true interpretation of cl 80 is that it does not require a prison officer to use annual leave merely because he or she has been allocated a position on the annual leave roster.

The Minister’s submissions

37      The Minister says if a prison officer can decide not to take her annual leave in the Leave Year, then that prison officer will never be subject to her Annual Leave Letter, because under s 25(2) of the MCE Act the prison officer can just keep taking accrued annual leave by giving two weeks’ notice.

38      The Minister argues that the Commission must consider the industrial context, which is highly regulated, dangerous and staff-dependant. Prisons require minimum staffing levels to function. Without that, prisons go into lockdown, which affects the safety of prisoners and staff.

39      The Minister says this must mean that the Union’s position cannot be right. The Industrial Agreement cannot intend that prison officers can choose not to take annual leave in any particular Leave Year, and therefore be able to carry forward their annual leave balances to use at their discretion.

40      The Minister denies there is anything in the Industrial Agreement that suggests an Annual Leave Letter issues annually. Rather, a prison officer only gets a new Annual Leave Letter when a conflict arises, for example when a prison officer transfers to work at a different prison.

41      The Minister says the Industrial Agreement anticipates and permits annual leave being taken before it accrues (cl 79.7). The Minister denies that the Annual Leave Letter system creates a debt. He says in effect there is simply a mechanism of ensuring that where people do take leave before it has accrued, there is a way of dealing with that. The Minister says that similar provisions are longstanding in the state system, for example in the Government Officers Salaries, Allowances and Conditions Award 1989.

42      The Minister argues that the reasoning of the Commission in Court Session in (Commission’s own motion) v Dardanup Butchering Co [2004] WAIRC 2739; (2004) 84 WAIG 2739 at [192] shows that the Union’s submissions have no force, because it makes clear that cl 80 is at least capable of applying in the way the Minister says it does, without offending s 25 of the MCE Act in relation to annual leave that accrues during the Leave Year.

43      The Minister argues that the language used in cl 80 is mandatory – ‘annual leave rosters shall apply to all officers’. The Minister submits that a plain reading of the Industrial Agreement makes it clear that on commencement, prison officers get their leave letter and their position on the annual leave roster. The Annual Leave Letter is fundamental to the annual leave roster and the taking of annual leave. The Minister argues that the words in cl 80.2 ‘each group commencing their leave’ are significant, and mean that prison officers commence their leave at the time determined in accordance with the place of their Annual Leave Letter in the annual leave roster. If a prison officer starts after the introduction of the annual leave roster, she must be allocated to a group in the roster, and then has the option of taking the balance of the Leave Year’s annual leave in advance at the time allocated by her Annual Leave Letter as well as taking the annual leave already accrued for that Leave Year.

44      The Minister argues that cl 80.5 of the Industrial Agreement is very important to this matter. It provides for when a prison officer wishes to ‘go outside the roster’. That includes not taking leave that year, or taking annual leave at another time. The words ‘a new date’ presuppose that a date existed. The Minister says there can be no reason to maintain the integrity of the annual leave roster except if it operates the way the Minister says it does. Prison officers are required to take their annual leave in the Leave Year that the leave accrues. If they do not, then they need to apply to take the annual leave at a different time under cl 80.5, in which case they are still deemed to have taken the annual leave in accordance with the annual leave roster. The Minister argues that this shows how important it is that annual leave is taken. The annual leave roster is framed according to the Annual Leave Letter, with each prison officer’s name on it. The prison officers take leave in accordance with it, and if they do not, they need approval. The Minster says: ‘[i]f any support is required for the view that no application for leave is contemplated, and leave is to be taken in accordance with the leave roster, it is in [cl 80.5]’. An application is only necessary to take leave other than in accordance with the leave roster, but it needs to be supported by ‘special reasons’, and therefore be exceptional or different to what is ordinary. Even if approval is given, the integrity of the annual leave roster is maintained. Annual leave is accrued not from the date annual leave is actually taken, but from the prison officer’s position in the annual leave roster.

45      The Minister submits that cl 81.1 answers the Union’s submission in relation to getting a new (different) Annual Leave Letter every year, because there could not be an ‘irresolvable conflict’ unless the prison officer was already required to take annual leave in accordance with the Annual Leave Letter. The Industrial Agreement provides a mechanism to get a new Annual Leave Letter, but based on operational requirements. Further, the Minister says in the context of a transfer or promotion to another prison, an ‘irresolvable conflict’ could not arise between the new prison’s annual leave roster and the prison officer’s original Annual Leave Letter if the taking of annual leave is at the discretion of the prison officer.

46      The Minister says it is clear that cl 80 of the Industrial Agreement is intended to require prison officers to take their annual leave that accrues in any Leave Year at the time allocated to them in the annual leave roster by their Annual Leave Letter, and the Minister says other clauses such as cl 85 and cl 56.3 assume this is the effect of cl 80.

47      The Minister says that cl 82.7 provides in effect that a prison officer can take a single day of annual leave but that is then adjusted on the leave roster, because annual leave is delayed by a rostered shift per single annual leave day taken. Purchased leave is not at large because of cl 138.7 of the Industrial Agreement. Clause 138.7 requires a separate leave roster for purchased leave. All other forms of leave require application and approval under the Industrial Agreement, except for annual leave. The Minister submits that one would expect that annual leave would be highly regulated, given the industrial context. He argues that if the Union’s construction were correct, one would expect that the employer would be able to direct when annual leave is taken. There is a good reason why there is nothing in the Industrial Agreement about that – because the taking of annual leave is completely prescribed by the Annual Leave Letter and leave rostering arrangements.

48      In relation to cl 80.6 of the Industrial Agreement, the Minister says it is used as a ‘gap filler’ for any gaps between leave periods and for other purposes such as training or short-term long service leave/other unspecified forms of leave. There will necessarily be gaps when periods will not all be filled with Annual Leave Letter periods.

49      In effect, the Minister argues that text in the Industrial Agreement is clear and understandable in the context of a prison setting, where it is imperative to maintain reliable, predictable staffing levels. Subject to cl 80.5, as a condition of employment, a prison officer must use their annual leave at the time of their Annual Leave Letter.

50      The Minister says the issue is not the employer directing a prison officer to take annual leave. Rather, the Minister and the Union have agreed that as a condition of employment, prison officers will take annual leave that accrues during any Leave Year at the time determined by the annual leave rosters specified in cl 80. The Minister submits that ‘the implications the Applicant seeks to make in [relation] to cl 80 are inconsistent with cl 80 and unnecessary to give it efficacy’.

51      The Minister argues:

The purpose of annual leave is to provide a necessary break from work to allow for rest and recuperation. In the absence of agreement, industrial instrument provision or legislation allowing for annual leave to be carried forward, it is lost unless taken in the year in which it accrues: Gordon v Carroll (1975) 27 FLR 129. By way of illustration clause 23(3)(b) of the Public Service Award permits a maximum of 2 years of annual leave from the date of entitlement, subject to the consent of the employer, to be carried forward. Section 23(2a) of the Minimum Conditions of Employment Act 1993 provides annual leave entitlements are cumulative. Section 24(1) requires untaken annual leave to be paid for on cessation of employment. These provisions are intended to overcome the general position that untaken annual leave is lost if not taken in the year in which accrues. Clause 80 is not unreasonable in providing for annual leave to be taken in the Leave Year in which it accrues.

52      The Minister says that contrary to the Union’s submission, cl 81 does not indicate a general intent in the Industrial Agreement that the Minister must deal with the individual circumstances of prison officers beyond as provided by cl 80.5. He says cl 82 does not assist the Union, because single days of annual leave are to be accommodated within the annual leave roster. Further, the Minister denies cl 83 is inconsistent with cl 80 having the meaning and effect proposed by the Minister. Clause 83 only permits cashing out of annual leave from ‘previous Leave Years’. The Minister says untaken annual leave can arise by being recalled to duty while on annual leave. Similarly annual leave may be re-credited where a prison officer is confined due to illness (cl 77.3) or where a prison officer is subpoenaed to give evidence on behalf of the State (cl 126.3(b)).

53      The Minister submits that the absence of similar requirements in cl 80 as those in cl 119.2 in relation to long service leave, where if there is no agreement the employer can direct when a prison officer will start long service leave, shows that an application and agreement for annual leave is not required under the Industrial Agreement. Clause 120.1 is not implied into cl 80 and does not qualify it. In a similar vein, the Minister says nothing in cl 138 in relation to purchased leave detracts from the Minister’s interpretation of cl 80.

54      The Minister says cl 80 is at least capable of applying as proposed by the Minister without offending s 25 of the MCE Act in relation to annual leave that accrues during the Leave Year. But in any event, the Minister says there has been agreement about when annual leave will be taken, because the Union agreed on behalf of prison officers in negotiating their conditions of employment that annual leave will be taken in accordance with cl 80, which means s 25(1) of the MCE Act does not apply.

55      The Minister argues that the answer to the question is ‘Yes’.

Consideration

56      As I said in Western Australian Prison Officers’ Union of Workers v Minister for Corrective Services [2023] WAIRC 00016; (2023) 103 WAIG 93:

The Commission has the power under s 46 of the IR Act to declare the true interpretation of the Industrial Agreement.

Smith AP (as she was then, with whom Scott CC agreed) set out the role of the Commission and the approach to be taken when interpreting an industrial agreement under s 46 of the IR Act in Public Transport Authority of WA v The Australian Rail, Tram and Bus Industry Union of Employees, WA Branch [2017] WAIRC 00869; [2017] WAIRC 00830. I respectfully agree with her reasoning and apply it in this matter.

The principles that apply to the interpretation of industrial agreements are the principles that apply to interpretation of contracts. The Full Bench said at [21]-[23] of Fedec v The Minister for Corrective Services [2017] WAIRC 00828; (2017) 97 WAIG 1595:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Agreement has to be construed to determine what the intention of the parties was at the time the Agreement was entered into. This has to be determined by ascertaining what a reasonable person would have understood the words of the Agreement to mean taking into account the text, the surrounding circumstances known to the parties and the purpose and object of the transaction: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 [40]; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 [22].

Surrounding circumstances may only be taken into account if the ordinary meaning of the words used by the parties is ambiguous or susceptible of more than one meaning: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337, 352; McCourt v Cranston [2012] WASCA 60 [23].

When interpreting industrial agreements, the Commission applies the general principles that apply to the construction of contracts, to determine the parties’ objective intention as expressed in the text of the industrial agreement having regard to its context.

The Industrial Agreement was made between the Union and Minister. It was registered on 18 December 2020 and its nominal expiry date is 10 June 2022. It applies throughout the Western Australia to prison officers employed in the classifications set out in Schedule A to the Industrial Agreement. The Industrial Agreement replaces in full the terms of the Prison Officers’ Award [37] – [41].

57      I accept the Union’s submission that the essential elements of the annual leave provisions in cl 80 of the Industrial Agreement have been in place for many years under previous versions of the industrial agreement.

58      The ‘non-leave period’ is the period of time in the annual leave roster, made up of three and six weeks, against which there is no Annual Leave Letter. As the Union says, it is a period during which annual leave is not taken. But that does not mean that the Industrial Agreement contemplates that employees can choose not to take annual leave at the time of their Annual Leave Letter. Further, contrary to the Union’s submission set out above at [23], in my view the non-leave period can be planned in advance.

59      I cannot accept the Union’s submission that reference to the ‘non-leave period’ in cl 80.6, taken with cl 9, means that it is up to a prison officer to decide whether or not to take annual leave at the time of her Annual Leave Letter. In relation to the Union’s argument set out above at [19] about the need for an equitable, uniform approach, in my view the Annual Leave Letter system that the Minister and the Union have agreed to in reaching the Industrial Agreement is that equitable, uniform approach.

60      To the extent it is necessary to deal with the Union’s submission that the description ‘annual’ in relation to the Annual Leave Letter suggests the Annual Leave Letter is given every year, I consider that it is clear that the adjective ‘annual’ describes the type of leave, not the timing of when the Annual Leave Letter is assigned. It is plain from the Industrial Agreement that a prison officer receives her Annual Leave Letter in writing on commencement at a prison. That Annual Leave Letter is part of a 6 or 8 year roster cycle. A change to a prison officer’s Annual Leave Letter is the exception under the Industrial Agreement, not the norm, for example when a prison officer moves to a new prison and there is an ‘irresolvable conflict’ between that prison’s annual leave roster and the prison officer’s original Annual Leave Letter. The Annual Leave Letter is not reissued annually.

61      I broadly agree with the Union’s argument set out above at [28], but in my view that argument supports the Minister’s construction. That argument does not support a construction that a prison officer can choose not to take annual leave at the time of their Annual Leave Letter and can then go on annual leave whenever they choose, as long as they give at least two weeks’ notice of the period during which they intend to take annual leave that accrued more than 12 months earlier.

62      In relation to the union’s argument set out above at [30] – [31], in my view cl 80 does not expressly limit the accumulation of annual leave from year to year because under cl 80 a prison officer uses annual leave at the time of the Annual Leave Letter, so accumulation is not an issue. Consistent with this construction:

a. there is no need for express words setting out when and in what circumstances the employer can direct a prison officer to start a period of annual leave in accordance with the annual leave roster, or not in accordance with the annual leave roster; and

b. guidance or a process by which a prison officer can apply to not use her accrued annual leave is unnecessary.

63      The argument that cl 80.5 provides guidance about how a prison officer can choose not to use her accrued annual leave for each contemplated year of the Industrial Agreement term does not assist the Union. Clause 80.5 makes it clear that it is exceptional to take annual leave other than in accordance with the Annual Leave Letter. In the ordinary course of events, a prison officer’s annual leave does not accumulate beyond the timeframes indicated on the roster by the Annual Leave Letter, because prison officers use the annual leave at the time of the Annual Leave Letter.

64      For the reasons given by the Minister and set out above at [52], I consider that cl 82 and cl 83 do not assist the Union. Further, I have carefully considered the rostering provisions under the Industrial Agreement. They do not lead me to prefer the Union’s construction.

65      I agree that the Industrial Agreement anticipates and permits annual leave being taken before it accrues. Under cl 79.7 the value of such annual leave is refunded if the prison officer’s employment ends before the leave that has been taken accrues. I am not persuaded that the arrangement under cl 80 amounts to a ‘cashing out of accrued annual leave’ agreement as contemplated by s 8 of the MCE Act, where an employee agrees to forgo taking annual leave in exchange for an equivalent benefit in lieu.

66      I agree with the Minister’s submissions set out above at [44]. The language of cl 80 is mandatory. Clause 80.5 is significant, and it provides for when a prison officer wishes to do other than take her annual leave in accordance with the annual leave roster. That prison officer needs special reasons and approval to do so, and the parties to the Industrial Agreement have agreed that that annual leave is deemed to have been taken in accordance with the annual leave roster.

67      Construing the Industrial Agreement as a whole, the intended meaning of cl 80 is that prison officers are divided into groups. Each group is allocated an Annual Leave Letter. A prison officer gets written confirmation of which group she is in when she gets her Annual Leave Letter when she starts at a prison. Each group ‘commences’ annual leave at 6 or 8 week intervals, according to their Annual Leave Letter. A prison officer can only go on annual leave at a time outside her Annual Leave Letter if she has special reasons for doing so, applies and receives approval. Significantly, even then the Industrial Agreement deems that the prison officer took leave in accordance with the leave roster (so at the time of the Annual Leave Letter).

68      Allowing for a generous construction and that industrial agreements are usually not drafted with careful attention to form by those experienced in drafting statutory instruments or documents with legal effect, I consider that the objective intention, as embodied in the words the parties have used in the Industrial Agreement, is that a prison officer must take annual leave, that is go on annual leave, at the time set out in the annual leave roster by the Annual Leave Letter. That is what a reasonable person would have understood the terms of the Industrial Agreement to mean.

69      That construction takes into account the particular industrial context. It goes without saying that predictable, minimum staffing levels are essential for a prison to safely operate. Given the very particular and dangerous environment of a prison, it is unsurprising that the Union and the Minister have agreed to such specific and regulated annual leave arrangements for many years. The proper operation of a prison involves fairly regulating when leave can be taken, to enable suitable staffing levels and predictable staff availability.

70      If prison officers could choose not to take annual leave at the time of their Annual Leave Letter, they would be able to choose to take annual leave that had accrued over 12 months earlier whenever they liked, simply by giving the employer two weeks’ notice, in accordance with s 25 of the MCE Act. Such a construction is at odds with the text of cl 80, which sets out a planned and regulated system of using annual leave. A construction that prison officers can choose not to take annual leave at the time of their Annual Leave Letter makes a ‘commercial nonsense’ of the very arrangement proposed in cl 80, because it would undermine it entirely.

71      In my view, the construction set out above at [68] is harmonious and consistent with the other clauses of the Industrial Agreement, including those in relation to long service leave and purchased leave. Contrary to the Union’s submission, it does not follow from cl 119 and cl 138 that a prison officer can decide whether to use annual leave at all, if they cannot agree with their employer about when to use it. Further, I agree with the Minister and consider that cl 56.3 and cl 85 clearly show an assumption that cl 80 intends to require prison officers to take their annual leave that accrues in any Leave Year at the time allocated to them in the annual leave roster by their Annual Leave Letter.

72      Accordingly, I consider that the parties’ objective intention as expressed in the text of the Industrial Agreement, having regard to its context, is that prison officers are, as a condition of employment, subject to cl 80.5, to take their annual leave that accrues during the Leave Year at the time determined by the annual leave rosters developed in accordance with cl 80.

73      The answer to the question is ‘Yes’.

74      The Commission will declare that the true meaning of cl 80 of the Department of Justice Prison Officers’ Industrial Agreement 2020 is that prison officers are, as a condition of employment, subject to cl 80.5, to take their annual leave that accrues during the Leave Year at the time determined by the annual leave rosters developed in accordance with cl 80.