Appeal against a decision of the Commission in matter number APPL 18/2021 given on 26 September 2023

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2024 WAIRC 00227

DELIVERED : TUESDAY, 21 MAY 2024

FILE NO. : FBA 6 OF 2023

Appellant

AND

Minister for Corrective Services

Respondent

ON APPEAL FROM:

Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Coram : COMMISSIONER T EMMANUEL

Citation : [2023] WAIRC 00773

File No : APPL 18 OF 2021

Catchwords : Industrial Law (WA) – Appeal to the Full Bench against decision of Commission – Interpretation of cl 80 of the Department of Justice Prison Officers Industrial Agreement 2020 – Relevant principles applied – Rostered annual leave and whether employees required to take leave in the year of accrual – Industrial agreement provides scheme for taking leave – Not at discretion of employees – Appeal dismissed

Legislation : Industrial Relations Act 1979 (WA) s 41, s 41(4), s 46, s 46(1), s 49

Minimum Conditions of Employment Act 1984 (WA) s 8, s 8(1), s 8(3), s 25(1), s 25(2)

Result : Appeal dismissed

Representation:

Counsel:

Appellant : Mr C Fordham of counsel

Respondent : Mr R Andretich of counsel

Solicitors:

Appellant : Slater & Gordon

Respondent : State Solicitor’s Office

Case(s) referred to in reasons:

Commission’s Own Motion v Dardanup Butchering Co [2004] WAIRC 12690; (2004) 84 WAIG 2739

Department of Education v State School Teachers Union of WA (Incorporated) [2020] WAIRC 00927; (2020) 100 WAIG 1493

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

Minister for Corrective Services v Western Australian Prison Officers Union of Workers [2023] WAIRC 00909; (2023) 103 WAIG 1953

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Western Australian Prison Officers' Union of Workers v Minister for Corrective Services [2023] WAIRC 00773; (2023) 103 WAIG 1777

Western Australian Prison Officers Union v Minister for Corrective Services [2024] WAIRC 00139; (2024) 104 WAIG 322

Reasons for Decision

THE FULL BENCH:

Background

1         In prisons throughout the State covered by the Department of Justice Prison Officers Industrial Agreement 2020, annual leave is taken in accordance with a roster.  The terms of the Agreement set out annual leave rostering arrangements in cl 80.  Clause 80 of the Agreement is in the following terms:

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.

2         Clause 80 operates in conjunction with another provision of the Agreement which is cl 81 – Annual Leave Letter Procedure for Transfers and Promotions.  This provides as follows:

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.

3         For the purposes of cl 80.6 of the Agreement, set out above, the ‘non-leave period’ is not defined.  There are other definitions that are relevant to cls 80 and 81 and they are set out in cl 7 – Definitions of the Agreement.  Relevantly for present purposes they are the definitions of ‘Annual Leave Letter’ and ‘Leave Year’ which are in the following terms:

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.

4         A difference of opinion arose between the appellant and the respondent, who are the only parties to the Agreement, about how cl 80 operated.  The Agreement has now been superseded by a later industrial agreement, the Department of Justice Prison Officers Industrial Agreement 2022.

5         The point of difference between the parties is whether during the operation of the annual leave roster, a prison officer is required to take their accrued annual leave in each Leave Year.  The appellant is of the view that the taking of annual leave under the roster is not mandatory.  An officer, according to the appellant’s view, can:

(a) take their annual leave in accordance with the roster;

(b) make an application to take their annual leave at another time outside of the roster; or

(c) decide to not take annual leave at all.

6         On the other hand, the respondent maintains that the effect of cl 80 of the Agreement required officers to take all of their annual leave which accrued to them during a Leave Year, and that leave be taken in accordance with the leave roster in cl 80 and a prison officer’s Annual Leave Letter.

Agreed facts

7         The dispute came before the Commission by way of an application to interpret cl 80 of the Agreement under s 46 of the Industrial Relations Act 1979 (WA).  The parties put before the Commission Agreed Facts, along with a bundle of agreed documents.  The Agreed Facts were:

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.

The decision of the Commission

8         The decision of the Commission was published on 22 September 2023:  Western Australian Prison Officers' Union of Workers v Minister for Corrective Services [2023] WAIRC 00773; (2023) 103 WAIG 1777.  At [7], the learned Commissioner posed the question to be determined in the interpretation application as follows:

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.’

9         The learned Commissioner answered the question in the affirmative and in doing so at [72] stated:

… 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.

10      Accordingly, in accordance with s 46(1) of the Act, the learned Commissioner made the following declaration:

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.

11      In support of the declaration that she made, the learned Commissioner in relation to the interpretation of cl 80 of the Agreement, found and concluded as follows:

(a) the reference to ‘non-leave period’ in cl 80.6 is a time period in the leave roster, comprising three or six weeks, in relation to which no Annual Leave Letter applies and no annual leave is taken over this period;

(b) that (a) did not mean that officers could choose to not take annual leave under the Agreement, at the time of their Annual Leave Letter;

(c) that the reference to ‘annual’ when referring to an Annual Leave Letter does not mean such a letter is issued yearly.  It refers to ‘annual’ in an adjectival sense;

(d) clause 80 of the Agreement contains no express limitation on the accumulation of leave from one year to another on the basis that officers use their annual leave under cl 80 and therefore the issue of accumulation does not arise;

(e) nothing in cl 80.5 supports the appellant’s position.  It applies to the exceptional situation of annual leave being taken other than in accordance with the officer’s Annual Leave Letter.  Ordinarily, there is no accumulation of annual leave because officers use their leave entitlement under their Annual Leave Letter;

(f) there was no basis for concluding that s 8 of the Minimum Conditions of Employment Act 1993 (WA) means that annual leave arrangements under cl 80 of the Agreement constitute ‘cashing out of accrued annual leave’;

(g) that the language of cl 80 is expressed in mandatory terms and the significance of cl 80.5 is that it requires a departure from the leave arrangement to be based on special reasons requiring approval, and that the Agreement constitutes an agreement between the parties as to how annual leave is taken under the roster;

(h) on the basis of the objective intention of the parties, from the language used in the Agreement, an officer must take annual leave at the time specified in the roster under the officer’s Annual Leave Letter.  This represents what a reasonable person in the position of the parties would consider the terms of the Agreement mean.  This is reinforced by the industrial context that in a prison environment predictable, minimum staffing levels are essential in order for a prison to operate safely;

(i) that if officers could choose to take annual leave at any time that they liked, this would be inconsistent with cl 80 and the planned and regulated system of taking annual leave.  Officers being able to not take annual leave under their Annual Leave Letter makes a ‘commercial nonsense’ of the arrangement contemplated by cl 80; and

(j) this conclusion is consistent with other relevant provisions of the Agreement including those in relation to purchased annual leave and long service leave.

The appeal

12      An appeal has been brought by the appellant from the decision of the Commission under s 49 of the Act.  The grounds of appeal are in the following terms (footnotes omitted):

Ground 1

The Commissioner has erred at law by the failure to provide adequate reasons for significant findings referred to at paragraphs [58], [65] and [71] of the Judgment.

Particulars

a. At paragraph [58] of the Judgment the Commissioner construed the phrase, “non leave period” referred to at clause 80.6 of the Industrial Agreement as meaning “the period of time in the annual leave roster ... against which there is no Annual Leave Letter”.

b. There are no express words in clause 80, or in any provision of the Industrial Agreement which import the particular meaning that was upheld by the Commissioner at paragraph [58] of the Judgment.

c. If the Commissioner has relied upon evidence from the bar given on the day of hearing by Counsel for the Respondent, then no reasons have been given to explain why that evidence was accepted, and no reasons have been given to explain why that evidence ought to be relied upon to construe the objective meaning of the words in clause 80.6.

d. The Commissioner has also given no reasons to explain her related conclusions at [58] of the Judgment where it was held that a “non-leave period” also exists with respect to individual officers who do not take their annual leave, and that any such period can be planned by the Respondent.

e. The Commissioner has also not provided any reasons to explain how she has found at paragraph [65] of the Judgment that a requirement to take a period of annual leave before the leave has accrued to an employee does not conflict with section 8 of the Minimum Conditions of Employment Act 1993 (MCE Act).

f. Finally, the Commissioner has not provided any reasons to explain her finding at paragraph [71] that the words of clauses 56 and 85 of the Industrial Agreement “clearly show” a specific intent as to the operation of clause 80.

g. The findings at [58], [65] and [71] are contentious matters and were important considerations in the construction of the terms of clause 80 in the relevant legislative context, and in the context of the Industrial Agreement as a whole.

h. The failure to explain the approach that was taken, and the failure to identify the specific meanings of contentious words and phrases does not allow an objective observer to understand the Commissioner’s reasoning process, or to form any view as to how relevant principles have been applied.

Ground 2

The Commissioner erred in fact by concluding at [62], [63] and [70] of the Judgment that prison officers who are covered by the Industrial Agreement do not accumulate annual leave from year to year.

Particulars

a. It was material to the Commissioner’s ultimate finding regarding clause 80, and her related finding concerning the interaction of the Industrial Agreement with section 25 of the MCE Act that that [sic] annual leave does not accumulate from year to year.

b. An assumption to the effect that annual leave does not accumulate from year to year to all of the workforce who are covered by the Industrial Agreement was not a fact in evidence and was not a realistic or reasonable inference to draw in the process of construction of the clause 80.

Ground 3

The Commissioner erred in law by failing to properly consider the operation of the annual leave provisions in the Industrial Agreement in the context of s 25 of the Minimum Conditions of Employment Act 1993.

Particulars

a. In written submissions, it was put by the Appellant that section 25 of the MCE Act implied a condition on the use of annual leave. The nature of the condition being that leave is ordinarily to be taken by agreement, failing which, section 25(2) of that Act provides a mechanism to resolve a stalemate.

b. The reasons of the Commissioner do not indicate that any consideration was given to the meaning and any conditions to be implied by MCE Act section 25.

c. Further, the Commissioner has held at paragraph [70] of the Judgment that the minimum condition implied by section 25(2) of the MCE Act creates a “commercial nonsense” in relation to the use of annual leave, and it was an error for the Commissioner to strive for a construction of the Industrial Agreement which seeks to lessen or avoid that statutory entitlement provision.

Ground 4

The Commissioner erred in law by the failure to consider all the words of clauses 85 and 56 of the Industrial Agreement in the assessment of clause 80.

Particulars

a. To paraphrase paragraph [71] of the Judgment, the Commissioner has found that the entitlement provisions at clauses 56 and 85 of the Industrial Agreement are harmonious with a construction of clause 80 which provides that all employees are required to take leave for the full period referred to in the annual leave roster each Leave Year.

b. It is not apparent which words and phrases the Commissioner has considered from clauses 56 and 85 to reach her finding.

c. The Appellant contends that terms of clauses 56 and 85 of the Industrial Agreement show the entitlements to be in the nature of an incentive for the use of leave, and when read as a whole those provisions do not support the finding reached by the Commissioner.

Orders Sought

The Appellant seeks the following orders -

1. The appeal be allowed.

2. The declaration of the Commission made on 26 September 2023 be set aside.

Principles to apply on the appeal

Nature of the appeal

13      As to the nature of the appeal and the approach to be adopted, recently, in Western Australian Prison Officers Union v Minister for Corrective Services [2024] WAIRC 00139; (2024) 104 WAIG 322, the Full Bench at [32] observed:

The approach to the disposition of the appeal by the Full Bench is dependent on the nature of the decision appealed from.  There are two broad approaches to appellate review, involving a ‘deferential standard’, reflecting the exercise of a discretion, and the ‘correctness’ standard, involving the application of a legal principle or standard: Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158 at [124]-[129] citing and applying Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 per Gageler J (as his Honour then was) at [35]-[37], [39-[41], and [43]-[50] (see too Pritchard v M 6:8 Legal Pty Ltd [2024] WASCA 4 at [35]).

14      We adopt and apply that approach for the purposes of the disposition of the present appeal.

15      In this case, the issue at first instance, was the proper construction of cl 80 of the Agreement, as applied to the Agreed Facts, and the other uncontroversial evidence.  The correctness standard therefore applies, and it is for the Full Bench to decide for itself, the proper construction of cl 80 of the Agreement, in the context of the facts as agreed or as found.

Interpretation of industrial instruments

16      There was no contest as to the relevant principles to apply in the interpretation of industrial instruments.  In Fedec v The Minister for Corrective Services [2017] WAIRC 00828; (2017) 97 WAIG 1595 Smith AP (as her Honour then was) and Scott CC observed at [21]-[23]:

Interpreting an industrial agreement - general principles of interpretation

[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].

Effect of clause 80 of the Agreement

17      Before considering each ground of appeal, we make the following general observations as to the operation and effect of cl 80 of the Agreement, taken in the context of the Agreement as a whole.

18      Prison officers under the Agreement, are, by cl 79, entitled to five consecutive weeks of annual leave for each year of continuous service.  The annual leave entitlement accrues pro rata on a weekly basis.  Officers working north of the 26th parallel in the State and those who are regularly rostered to work on Sundays and public holidays receive an additional one week of annual leave each year.  Officers who are located in regional areas are additionally entitled to extra payments and paid travel time when proceeding on annual leave, under cls 56 and 85 of the Agreement.  Of note, by cls 56.3 and 85.3, an officer is only entitled to this benefit once in any Leave Year, unless they are rostered by their Annual Leave Letter to two periods of leave, and the second period does not result from their own request.

19      Clause 80 establishes an annual leave roster.  In cl 80.1, it is provided that annual leave rosters ‘shall apply to all Officers’.  The roster arrangements for annual leave are therefore mandatory in their application, for the two roster groupings established by cl 80.1.  The first group is those in Southern Prisons which roster operates over an eight year cycle.  The second group is for Northern Prisons, which operates on a six year roster cycle.  As set out in the Agreed Facts referred to above, officers are assigned to a position on the relevant roster, in accordance with their ‘Annual Leave Letter’, when they commence at a prison.  This is provided in cl 80.4.  Each of the two roster groups commences their leave at six or eight week intervals under the roster arrangement.

20      The Annual Leave Letter is a key component of the operation of the annual leave roster scheme.  The Annual Leave Letter definition is set out above.

21      The Annual Leave Letter is also referred to in cl 81.  Whilst this clause does not deal with the issuance of an Annual Leave Letter, which is assumed to be covered by cl 80.4 referred to above, cl 81 is important because it describes what occurs when an officer moves to another prison by way of a transfer or is promoted.  By cl 81.1, it is provided that if this occurs, it is only in the case of an ‘irresolvable conflict’, that is between the original prison Annual Leave Letter and the roster applying at the officer’s new prison, that a new Annual Leave Letter will be issued.  This is subject to conditions not relevant to consider for present purposes.

22      The importance of the Annual Leave Letter to the operation of cl 80 and the scheme for the taking of annual leave under the Agreement is evident.  This is because there will only be a change to the Annual Leave Letter, and hence when an officer takes leave in accordance with the relevant roster, in the case of an ‘irresolvable conflict’.  If the taking of annual leave is not only governed by cl 80 and cl 81 of the Agreement, but confers on an officer discretion whether, and when, to take annual leave as appears to be the appellant’s position, it is difficult to see how such any irresolvable conflict could arise.  This is simply because on the appellant’s case, if an officer moved to a new prison by way of a transfer or a promotion, the officer could simply elect to not take leave as set out in their Annual Leave Letter, and no irresolvable conflict would arise.

23      The management of the annual leave roster for each prison is the responsibility of the relevant Superintendent, under cl 80.3.  This is consistent with other parts of the Agreement, referred to above and discussed in Minister for Corrective Services (2024) referred to below, that places matters of leave management and staffing generally, in the hands of the Superintendent.  Notably, the operation of cl 80.3, and the role of the Superintendent, is ‘subject to the annual leave block sequence and the principles in this Agreement being followed’.  Presumably, as to the latter, the relevant principles are those referred to in cl 9 of the Agreement, which includes cl 9.2(a) which states ‘Maximise the efficiency and security of the prison Service for its benefit and that of Officers and the community; …’.

24      The reference to the role of the Superintendent is also subject to the ‘annual block sequence’, which seems to affirm the importance of the content of the leave roster, and the individual officer’s position on it, as set out in their Annual Leave Letter.

25      Clause 80.5 is an important provision for present purposes.  The first sentence makes it clear that annual leave may only be taken at a time other than that set out in the leave roster, if ‘special reasons’ exist.  In accordance with its ordinary meaning, ‘special’ as defined in the Shorter Oxford English Dictionary relevantly means ‘1. Of such a kind as to exceed or excel in some way that which is usual or common; exceptional in character, quality or degree …’.  It is thus only in exceptional circumstances, where an officer’s departure from the leave roster may be considered.  This is a strong indicator in favour of the sanctity of the annual leave roster, and the absence of any residual discretion for an officer to depart from it of their own volition.

26      The last part of this subclause is also important in the overall scheme.  It is provided in the last sentence of cl 80.5 that if the employer is satisfied that special reasons do exist for an officer to take annual leave at a time other than that set out in the roster, such a different time for the taking of leave will be deemed to have been taken under the leave roster.  Again, this provision seems to reaffirm the central part played by the leave roster in cl 80.1 of the Agreement.

27      As to the last part of cl 80, in cl 80.6, there is reference to ‘The non-leave period’.  It is unclear from the Agreement what this is.  This provision states that periods of three and six weeks over a three year period, are the non-leave period.  There is no other reference to this concept in the Agreement.  Given the extent to which other matters are defined in cl 7 - Definitions, this may have been an oversight by the drafters of the Agreement.  The use of ‘The’ at the commencement of cl 80.6, would ordinarily suggest that this provision follows an earlier definition of it or the concept is otherwise referred to in an earlier part of the Agreement, but this is not so.  Somewhat curiously, it appears for the first and last time in cl 80.6.

28      As industrial instruments are to be construed generously, and may be informed by customs, practices, and established procedures in workplaces, some latitude is to be given to ascertain the meaning of provisions such as cl 80.6.  The appellant contended at first instance that this was a period when no leave is taken, and which supported its position that officers can take leave in accordance with their discretion, as long as this three or six week period is preserved.  On the other hand, the respondent’s position was that the reference to the ‘non-leave period’, was simply a means of filling in gaps in the annual leave roster, because without it, the weeks’ over the roster periods did not add up.  As this point was contentious, we will return to it later in these reasons.

29      Separate from a request to take annual leave for special reasons, outside of the annual leave roster, an officer could seek approval to take up to five shifts of annual leave as single days each year, under cl 82.  It is clear however, that unless a ‘repay agreement’, as defined in cl 7, is entered into, by cl 82.7, an officer who takes single day leave absences, is required to delay the commencement of their rostered annual leave (under the roster), and work shifts equal to the number of single days of leave taken.  Again, this provision tends to affirm the importance of the annual leave roster as the fulcrum point in relation to annual leave being taken under the Agreement.

30      Importantly, in contrast to other forms of leave available under the Agreement, there is no provision by which officers were required to apply to take annual leave, other than in the circumstances to which reference has been made above.

31      Context is also important in construing the terms of an industrial instrument.  The terms of the Agreement were recently considered by the Full Bench in Minister for Corrective Services (2024).  In that matter, which involved an appeal from a decision of the Industrial Magistrates Court in relation to an alleged failure to comply with cl 138 of the Agreement regarding purchased annual leave, the Full Bench made some observations about the contextual operation of the Agreement and said at [66]-[69]:

[66]  As cl 138 of the Agreement must be construed and read with the terms of the Agreement as a whole, other provisions of the Agreement can be considered in the construction of cl 138. In cl 6 – Relationship with Legislation, Awards and Other Agreements, in subclause c. 6.4, it is provided that “This Agreement will be read in conjunction with ‘the relevant legislation and associated regulations.” The relevant legislation and associated regulations are not defined or expressed. However, the Agreement is an industrial agreement made between the appellant and the respondent in relation to terms and conditions of employment to apply to prison officers in the corrections system at prisons throughout the State. As part of the context, and the industrial character and purpose of the Agreement, we think it is reasonably open to conclude that the reference to ‘relevant legislation and associated regulations’ will include the Prisons Act establishing, and governing the operation of the prisons system. In particular, ss 36 and 37 of the Prisons Act set out the role and responsibility of prison Superintendents, as being responsible for the ‘good government, good order, and security of the prison of which he is a superintendent’: s 36(3).

[67]  The role and responsibility of a prison Superintendent is referred to in cl 153 – Staffing Shortfalls of the Agreement. This provision refers to the importance of the maintenance of prison routine and the security and welfare of prisoners and the safety of staff, consistent with s 36 of the Prisons Act. In the event of a staffing shortfall, on any given day, the Superintendent can take steps to ensure that the prison routine, security and welfare of prisoners and the safety of staff are maintained, including by requiring prison officers to return to duty.

[68]  Furthermore, in cl 26 - Development of Rosters, in relation to working hours arrangements, a staffing roster is required in each prison to ‘fulfil the operational requirements’ of a prison. Any changes to officers’ days of work must be approved by the prison Superintendent. We have already noted the terms of cl 80 – Annual Leave Roster, which sets out a highly regulated scheme for the taking of planned leave by prison officers, rostered well in advance. It is also the responsibility of the Superintendent to manage the leave roster. If an officer wishes to take annual leave at a different time to that on the roster, they may only do so if they have ‘special reasons’, and must apply in writing to the employer (cl 80.5).

[69]  In our view, in terms of the industrial context, having regard to the industry to which the Agreement relates, and other relevant provisions of the Agreement to which we have referred, and the Prisons Act, the need for a strict regime as to working hours arrangements, and as to the taking of leave, is apparent. Staffing arrangements are to be closely managed, to maintain the routine, good order and security of prisons…

32      Those observations are also relevant to the way in which cl 80 should be interpreted in the context of the Agreement as a whole and to the disposition of the present appeal.

Consideration of appeal grounds

Ground 1

33      This ground contends that the learned Commissioner was in error in not giving adequate reasons for conclusions that she reached at [58], [65] and [71] of her reasons for decision.  It was submitted that in relation to each of these issues, which the appellant contended were important aspects of the dispute between the parties at first instance, the learned Commissioner’s reasons failed to adequately explain the basis for the conclusions that she reached.  At [58]-[59] of her reasons, as to cl 80.6 of the Agreement, the learned Commissioner said:

[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.

34      It was submitted by the appellant that the learned Commissioner adopted submissions made by counsel for the respondent on the day of the hearing of the matter, as to the meaning of cl 80.6, which deals with the ‘non-leave period’.  It was submitted that the learned Commissioner may have confused the appellant’s and the respondent’s submissions made in the course of the hearing, as to the meaning of this provision.  The appellant contended that the learned Commissioner adopted a subjective approach to the construction of cl 80.6, and did not consider its meaning objectively.

35      At [65] of her reasons, the learned Commissioner commented on annual leave being taken in advance of it falling due under the Agreement and whether this offended s 8 of the MCE Act regarding ‘cashing out’ of annual leave as contended by the appellant.  She said:

[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.

36      The appellant contended that the learned Commissioner’s conclusions in relation to an officer taking annual leave prior to its accrual, may have conflated arguments put to the Commission, distinguishing between an officer agreeing to take leave in advance, and an officer being required to do so.

37      As to [71] of her reasons, the learned Commissioner referred to her earlier conclusion at [68] that cl 80 has the effect of requiring officers to take their annual leave as it accrues in a Leave Year, when viewed objectively.  She also stated that cls 56 and 85, which deal with additional benefits for certain officers when going on leave, confirms this approach to cl 80 as follows:

[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.

38      The appellant contended that the Commission’s reference to cls 56 and 85 of the Agreement, failed to take into account that access to the benefits of these clauses is by a process of application and approval. It was submitted that these provisions do not support the conclusions reached by the learned Commissioner as to cl 80, that officers are required to take all of their accrued annual leave in accordance with the leave roster in each Leave Year under their Annual Leave Letter.

39      Overall the appellant submitted that the learned Commissioner’s reasons as to this issue, were insufficiently clear as to how cls 56 and 85 supported the conclusions she came to.

40      As to the obligation to give sufficient or adequate reasons for decision, in Department of Education v State School Teachers Union of WA (Incorporated) [2020] WAIRC 00927; (2020) 100 WAIG 1493, Kenner SC (as he then was) referred to relevant authorities and said at [51]-[53] as follows:

[51]  In a recent decision of the Court of Appeal in Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20; (2019) 54 WAR 222 Quinlan CJ, Murphy and Beech JJA summarised the legal principles as to the adequacy of a judge’s reasons at [112]:

Adequacy of reasons for decision:  legal principles

112 Principles relevant o an evaluation of the adequacy of reasons include the following:

(1) Reasons for decision need not be lengthy or elaborate.

(2) Reasons should disclose the intellectual process that led to the decision in sufficient detail and with sufficient certainty to enable the litigant to know why they were unsuccessful and to enable an appeal court to determine whether the decision involved appellable error.

(3) It is not necessary to refer to every submission advanced by a party.  However, a tribunal or court must engage with the central element(s) of a losing party’s case and explain why that case fails.

(4) In determining the adequacy of the reasons, the reasons must be read as a whole, and, if necessary, considered in the context of the evidence.  An appellate court may take into account what can legitimately be inferred from the reasons.  Whether reasons are adequate will depend upon the circumstances of the case and the matters that arose for the judge’s or tribunal’s consideration.

[52]  (See too Mt Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273; Marshall v Lockyer [2006] WASCA 58; Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222; (2017) 52 WAR 368 at 409 – 410; Bucu v Midland Brick Co Pty Ltd (2002) 82 WAIG 743; Ruane v Woodside Offshore Petroleum Pty Ltd (1991) 71 WAIG 913)

[53]  In Marshall, McClure JA referred to the obligation on a judge to give reasons and at [247] - [249] and said:

Adequacy of reasons

247 The trial Judge was under a duty to give reasons.  In determining the adequacy or sufficiency of the reasons, it is necessary to look at the reasons as a whole, and if necessary in the context of the evidence, to see if they give the sense of what was intended in a way that achieves the required function and purpose of reasons: Garrett v Nicholson (1999) 21 WAR 226 at 248 per Owen J.  The function of reasons is to allow an appeal court to determine whether the decision was based on an appealable error and to provide procedural fairness to a litigant who is entitled to know why it is that he or she has been successful or unsuccessful.  It is sufficient if the reasoning process which led to the result is disclosed with sufficient certainty to enable a litigant to know why it is that the result ensued and to ensure that the statutory right of appeal has been secured: Garrett v Nicholson at 248.

248 However, reasons need not be lengthy and elaborate nor do they require reference to all of the evidence led in the proceedings or every submission advanced by the parties: Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 at [28]; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.

249 Further, as the Full Court stated in Mount Lawley Pty Ltd v Western Australian Planning Commission at [29], inadequacy of reasons does not necessarily amount to an appealable error; an appeal court will only intervene when the inadequacy or insufficiency in the reasons are such as to give rise to a miscarriage of justice.

(Footnotes omitted)

41      In this case, as we have already observed, cl 80.6 is brief and undefined.  It simply refers to a period where no leave is taken.  The appellant argued at first instance that cl 80.6 refers to a period where no annual leave is taken, as a part of its case (see transcript at first instance p 13). In the appellant’s written submissions at first instance, the appellant also submitted that cl 80.6 ‘does provide guidance as to how an officer can choose to not use his or her accrued annual leave for each contemplated [sic] year of the Agreement term (see appellant’s written submissions [31d] AB41).  With respect, it is unclear to us how cl 80.6 has this effect.  On this point, the appellant appeared to argue at first instance that cl 80.6 was consistent with the appellant’s general argument, that some officers may not take leave, and this was at their discretion, in line with provisions of the Agreement in cl 9, requiring employees to be treated equitably and fairly.

42      For the respondent, at first instance it was submitted as noted above, that cl 80.6, prescribing the non-leave period, was a ‘filler’, in the leave roster scheme, to bring it into balance.  Counsel for the respondent during the hearing, took instructions as to the purpose of cl 80.6, as it seemed unclear.  Counsel informed the Commission that the three or six week period was used as a ‘spacer’, in the roster during which no annual leave is taken, and which period may be used for training or for short periods of long service leave, for example (see transcript at first instance p 25).  Whilst no objection was taken by the appellant to the respondent’s submissions on this point, the appellant maintained its position that cl 80.6 was for the purposes that it contended.

43      We are not persuaded that the learned Commissioner’s reasons as to what cl 80.6 may mean were inadequate.  It was not in dispute that annual leave is not taken over this period, on either the appellant’s or the respondent’s cases.  We consider that this clause simply means what it says.  It is a period in the roster where no annual leave is taken, whether it be for a three or six week block of time.  It makes common sense that this period is in connection with the operation of the annual leave roster because it is in cl 80 dealing with the subject matter.  Also, as a matter of common sense, if no annual leave is to be taken over these periods, then they would not be required to be referred to in an officer’s Annual Leave Letter, which does set out when leave is to be taken in accordance with the roster.

44      It is not the case that the operation of this provision is in some way inequitable.  We cannot see in its terms, construed with the rest of cl 80, that it is.  The learned Commissioner concluded that cl 80.6 was not consistent with officers being able to take leave at a time of their choosing, outside of the Annual Leave Letter, and that these time periods may be planned in advance.  Being planned in advance, means that the time periods are allocated in the annual leave roster, which we would have thought would be an entirely uncontroversial proposition.

45      Therefore we cannot see any inadequacies in the learned Commissioner’s reasoning as to this issue.

46      The appellant’s sub ground [1e] contends that the learned Commissioner’s reasons at [65], failed to explain how it is that she concluded that the taking of annual leave in advance by reason of cl 79.7 of the Agreement, did not contravene s 8 of the MCE Act.

47      We are not persuaded that there was any conflation of the appellant’s arguments or any inadequacy of the learned Commissioner’s reasons on this point.  Clause 79.7 clearly contemplates that an officer may take annual leave before the entitlement to it fully accrues.  Clause 79.7 is as follows:

79.7 An Officer, whose employment terminates before accruing annual leave that has already been taken, must refund the value of the annual leave not accrued calculated at the rate of the Officer’s Hourly Annualised Rate of Pay as at the date the annual leave was taken. No refund is required in the event of the death of an Officer.

48      It provides that in this situation, on termination of an officer’s employment, the officer is required to refund to the employer an amount equal to the value of the leave taken, but not fully accrued.  Two points arise from the argument put by the appellant at first instance.

49      First, it is clear that cl 79.7 of the Agreement concerns itself with leave arrangements in the relevant year in which leave accrues.  It is not concerned with already accrued leave from any previous year(s).  Second, nothing in cl 79.7 suggests that an officer forgoes annual leave: quite the opposite.  It concerns itself with taking leave before that entitlement to leave has arisen.  It is a benefit in advance.  Clause 80.2 also refers to an officer taking leave in advance under the roster, before such leave falls due.

50      It was contended at first instance by the appellant, that the effect of cl 79.7, to confer annual leave in advance on an officer, creates a debt, contrary to s 8 of the MCE Act.  In our view, even as a matter of context, s 8 of the MCE Act is not engaged in the circumstances contemplated by cls 79.7 and 80 of the Agreement.

51      Section 8 of the MCE Act deals with a different subject matter of ‘cashing out’ accrued annual leave in return for a benefit, normally a sum of money, in lieu.  This applies to a period of leave that has accrued after at least one year’s service by an employee:  s 8(1).  The prohibition in s 8(3) on forcing an employee to forgo leave in return for a benefit in lieu, is not contemplated by cl 80 of the Agreement.  Whilst the learned Commissioner’s reasons were brief on this point, no more was required.

52      The final part of this ground, in [1f], contended that [71] of the learned Commissioner’s reasons did not adequately explain her rationale for concluding that cls 56 and 85 of the Agreement, supported the respondent’s contention that cl 80 requires officers to take annual leave accruing in a Leave Year, in accordance with the roster and the Annual Leave Letter.  In the respondent’s written submissions at first instance (AB50), it was contended that given the nature of a prison operation, there is a need to maintain suitable staffing levels and it is essential that the respondent be able to predict staff availability.

53      The learned Commissioner referred to her agreement with the respondent’s views about these two clauses.  The respondent’s submissions were to the effect that it is understandable that cl 80 requires officers to take their annual leave as it accrues under the annual leave roster, given the need for certainty and predictability of staffing in a prison, noted above.  It was contended that other clauses of the Agreement contain the same assumption, and reference was made to cls 56.3 and 85.3, which relate to annual leave travel concessions and the payment of travelling time.  The respondent’s submission on appeal was that it is cl 80 that informed the meaning of both of these provisions, to the same effect.

54      In terms of this sub ground of appeal, all that can be said is that in concluding as she did at [71] of her reasons, the learned Commissioner simply considered that these two subclauses of the Agreement affirmed the intention that officers are to take their annual leave in accordance with the annual leave roster and the Annual Leave Letter in cl 80.  We do not think any more can be inferred from her reasons and there was little more that needed to be said.  There was no inadequacy in the learned Commissioner’s reasons in this respect.  These matters are further considered in ground 4.

55      This ground of appeal is not made out.

Ground 2

56      As to this ground, the appellant submitted that the learned Commissioner was in error in concluding at [62]-[63] and [70] of her reasons, that officers covered by the Agreement, do not accumulate annual leave from year to year.  It was submitted that the terms of cl 80 taken as a whole, read with other provisions of the Agreement, such as cls 77.3 and 69, do not permit the inference that the appellant says that the learned Commissioner drew to the effect that cl 80 does not permit the accumulation of annual leave.  It was submitted that the learned Commissioner’s reference to s 25(2) of the MCE Act, at [70] of her reasons, tended to support the appellant’s assertion that the Commission concluded that there is no such accumulation.

57      At [62]-[63], in considering the appellant’s argument at first instance that cl 80 indicates that officers have complete discretion whether or not to use annual leave, and the fact the provision does not limit the accumulation of annual leave from year to year, the learned Commissioner observed:

[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.

58      A little later, after considering the industrial context in which cl 80 of the Agreement operates, from the terms of the Agreement read as a whole, the learned Commissioner then further observed at [70]:

[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.

59      The difficulty with this ground is that, taken in the context of the Commission’s reasons as a whole, the learned Commissioner did not, in the impugned paragraphs, actually conclude that annual leave does not accumulate.  What she said was, given her views as to the operation of cl 80, whilst not expressly precluding the accumulation of annual leave, its accumulation under the terms of cl 80 is not an issue because on the construction of the clause that she preferred, officers are required to use the annual leave that they accrue in a leave year, in accordance with their Annual Leave Letter and the annual leave roster.

60      The respondent did not contest the proposition at first instance, that annual leave may accumulate under other provisions of the Agreement, such as cls 69.2, 77 and 126.3(b).  This was noted by the learned Commissioner at [52] of her reasons.  The respondent submitted on the appeal that these circumstances are implicitly recognised in the learned Commissioner’s conclusion at [63], set out above, where she refers to an officer’s annual leave not accumulating ‘in the ordinary course of events’.  As to the submission by the appellant that the reference by the learned Commissioner to s 25(2) of the MCE Act suggested that she did conclude that annual leave did not accrue under the Agreement at all, we do not consider this to be so.  Section 25 of the MCE Act only has effect in circumstances where there has been an accrual of annual leave in a prior annual leave year, and the employer and the employee have not agreed when that accrued leave will be taken.  In those circumstances, by s 25(2) the employee may take such previously accrued annual leave on the giving of two weeks’ notice to the employer.

61      We do not read [70] of the learned Commissioner’s reasons, as suggesting that there can be no accrual of annual leave under the Agreement at all.  As noted above, we consider it implicit in her conclusions at [63], that she recognised this could occur arising from other provisions of the Agreement.  However, this particular passage at [70] of the reasons, simply says that if 25(2) of the MCE Act did operate, because officers could, on the appellant’s case, take annual leave as and when they wished, it would be contrary to the scheme established by cl 80 of the Agreement.  As also pointed out by the respondent in his appeal submissions, s 25 of the MCE Act, is not concerned with and does not apply to annual leave which accrues in the course of an accrual year, which is the concern of cl 80, as opposed to already accrued annual leave: Commission’s Own Motion v Dardanup Butchering Co [2004] WAIRC 12690; (2004) 84 WAIG 2739 at [192].

62      This ground of appeal is not made out.

Ground 3

63      This ground complains that, in essence, the learned Commissioner did not fully consider s 25 of the MCE Act when addressing the appellant’s argument as to when annual leave could be taken under the Agreement.  It was submitted that in concluding at [71], that if s 25 operated as contended by the appellant, this would lead to a ‘commercial nonsense’, the learned Commissioner then failed to properly construe s 25 in accordance with the relevant principles discussed and applied in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355.  In this respect, the appellant submitted that the learned Commissioner should have found that applying s 25(1) of the MCE Act as a minimum condition, that annual leave can only be taken under the Agreement by the agreement of the parties in accordance with s 25(2) of the MCE Act, and implicitly, not in accordance with the respondent’s view of cl 80.

64      It is unnecessary to consider the appellant’s arguments as to the learned Commissioner’s approach to s 25 of the MCE Act.  This is because, for the brief reasons identified in relation to ground 2 above, s 25 simply did not operate in the circumstances before the Commission in this case, in the construction of cl 80 of the Agreement.  This is because under cl 80, annual leave is taken in the year of its accrual, in accordance with the annual leave roster and the officer’s Annual Leave Letter.  As noted above, s 25 of the MCE Act only applies to leave that has already accrued from a previous year.

65      Even if s 25 did apply, by the reaching of an industrial agreement and its registration under s 41 of the Act, the parties reached such an agreement as to the taking of annual leave.  We say this because by s 41(4) of the Act, an industrial agreement once registered, ‘extends to and binds’ all employees employed in any calling in the industrial agreement and their employer.  That is, in the present case, under the Agreement, the appellant on behalf of each prison officer covered by it, is taken to have agreed with the respondent about matters covered by it, including the obligations imposed by cl 80.

66      This ground of appeal is not made out.

Ground 4

67      As to this ground, the appellant contended that the learned Commissioner did not, when referring to cls 56 and 85 of the Agreement, at [71] of her reasons, properly construe the full terms of these two clauses.  Clause 56 deals with remote area travel concessions and provides for additional payments to officers if they proceed on annual leave to an area outside of the region of their headquarters.  The relevant provision referred to by the learned Commissioner is 56.3 which is as follows:

56.3 An Officer is only entitled to the Annual Leave Travel Concession once per Leave Year unless the Officer is rostered in their Annual Leave Letter to take annual leave twice in that Leave Year. An Officer who is rostered in their Annual Leave Letter to take annual leave twice in a Leave Year shall be entitled to the concession twice in that Leave Year unless the annual leave is rostered twice in the same Leave Year at the request of the Officer pursuant to subclause 80.5.

68      A similar provision is cl 85 which provides for travelling time, again for officers who go on annual leave outside of the region of their headquarters.  The relevant part is cl 85.3 which is as follows:

85.3 An Officer is only entitled to be paid travelling time once per Leave Year unless the Officer is rostered by their Annual Leave Letter to take annual leave twice in that Leave Year. An Officer who makes a request under subclause 80.5 and is subsequently rostered to take annual leave twice in the same Leave Year will not be entitled to the additional travelling time provided by this clause.

69      We have set out [71] of the learned Commissioner’s reasons above.  Submissions as to cls 56 and 85 of the Agreement, were made by the appellant during the course of the hearing at first instance (see p 12-13, 17, and 26 transcript at first instance).  The argument appeared to be that given that this additional time and payments are available only upon application by an officer, which must be approved, and both provisions go hand in hand, the relevant additional time period cannot be predicted in advance, at the time of the issuance of an officer’s Annual Leave Letter.  Accordingly, as we understood the argument, the Annual Leave Letter therefore, cannot be a mechanism that requires an officer to take an unknown period of leave in the future, having regard to this additional time benefit, if sought and if approved.  It was therefore contended that these two clauses of the Agreement, referred to by the learned Commissioner, do not support the construction of cl 80 that she preferred.

70      On the appeal, it was also submitted that these two provisions of the Agreement only operate on the application of an officer, and relate to an officer’s choice of holiday destination, and act as an incentive to officers.  Viewed in this way, they do not support the approach taken by the learned Commissioner to cl 80.

71      The two clauses referred to in relation to this ground of appeal, while related to the taking of annual leave, deal with different subject matter.  Clause 56 provides for additional payments made to officers going on annual leave for travel from remote locations and cl 85 provides for additional paid time in doing so.

72      The learned Commissioner’s conclusion that both provisions tend to support the role of the annual leave roster and the Annual Leave Letter in cl 80, was open.  This is because by the express words of cls 56.3 and 85.3, both affirm the taking of annual leave by officers in accordance with ‘their Annual Leave Letter’, and the scheme in cl 80.  Neither subclause refers to an officer taking annual leave in any other way.  Under cl 85.3 it is clear that the only alteration to the dates in an officer’s Annual Leave Letter, is by an application under cl 80.5, in which case there is no second benefit of travelling time payable.  Clause 56.3 is to a similar effect.

73      The learned Commissioner’s reference to these provisions of the Agreement is broadly supportive of the core proposition that by cl 80 of the Agreement, when read in the context of the Agreement as a whole, annual leave is to be taken as it accrues in accordance with the annual leave roster and an officer’s Annual Leave Letter, and not at the discretion of officers.  It is to be taken as it accrues in a Leave Year, in accordance with the scheme set out in cl 80.  We are not persuaded there was any error in the learned Commissioner’s reference to these provisions of the Agreement.

74      This ground of appeal is not made out.

Conclusion

75      For the foregoing reasons, none of the appeal grounds are made out and the appeal is dismissed.