INTERPRETATION OF THE DEPARTMENT OF JUSTICE (YOUTH CUSTODIAL OFFICERS) CSA AGREEMENT 2022

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00710

DELIVERED : Thursday, 21 August 2025

FILE NO. : P 9 OF 2024

Applicant

AND

Director General, Department of Justice

Respondent

CatchWords : Industrial Law (WA) - Interpretation of industrial agreement - Terms implied by the Public Sector Management Act 1994 (WA) - Effect of reference to 'full pay' on higher duties allowance - True meaning of 'full pay' - Relevant principles to be applied - Industrial Relations Act 1979 (WA) s 46 - Application dismissed

Legislation : Industrial Relations Act 1979 (WA)

  Minimum Conditions of Employment Act 1993 (WA)

  Public Sector Management Act 1994 (WA)

Result : Application dismissed

Representation:

Applicant : Ms G Murray (of counsel)

Respondent : Mr J Carroll (of counsel)

Case(s) referred to in reasons:

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

Reasons for Decision

1         The Civil Service Association of Western Australia Incorporated (CSA) made an application for the Public Service Arbitrator (Arbitrator) to interpret the meaning of ‘full pay’ as used in s 82 of the Public Sector Management Act 1994 (PSMA) and the Department of Justice (Youth Custodial Officers) CSA Agreement 2022 (Agreement). The CSA seeks a definition of ‘full pay’ as it applied to the Juvenile Custodial Officers’ Award (Award), the Agreement and within the context of a union members’ circumstances to resolve the ongoing dispute between the parties.

2         The question concerning the meaning of the term ‘full pay’, relates to a situation in which a Juvenile Custodial Officer was suspended during a period in which he had been receiving a Higher Duties Allowance (HDA). The Juvenile Custodial Officer was suspended under s 82 of the PSMA which states:

The employing authority may, in accordance with the Commissioner’s instructions suspend the employee on full pay, partial pay or without pay.

3         The CSA claims that ‘full pay’ as a term of the Agreement, includes the payment of a HDA where an employee is suspended on full pay under s 82 of the PSMA.

4         The Department of Justice (Department) argues that as the term ‘full pay’ applies to its use in the PSMA, the Arbitrator has no jurisdiction to make the declaration sought.

5         In the alternative, the Department says that if the Arbitrator finds there is jurisdiction to make the declaration, the Western Australian Industrial Relations Commission (Commission) ought not to because the proposed construction by the CSA is incorrect and the Arbitrator should not issue any declaration under s 46 of the Industrial Relations Act 1979 (WA) (IR Act) for discretionary reasons.

6         I must decide whether the Arbitrator has jurisdiction to interpret the term ‘full pay’ and if so, whether to exercise discretion to issue a declaration of the meaning of ‘full pay’.

Background

7         The question arose in relation to a union member who is employed as a Juvenile Custodial Officer under the Award and the Agreement. The union member had been employed as an Acting Senior Officer and received a HDA under clause 5.1 of the Award.

8         On 1 May 2023, the union member received a letter informing he was suspended on ‘full pay’ under s 82(1) of the PSMA during an investigation for a breach of discipline. Section 82(1) of the PSMA provides:

If —

(a) an employing authority has decided to act under section 81(1)(a) in relation to an employee; or

(b) an employee is charged with having committed a serious offence,

The employing authority may, in accordance with the Commissioner’s Instructions, suspend the employee on full pay, partial pay or without pay.

9         The letter to the union member on 1 May 2023 stated he would be suspended on ‘full pay’:

On this basis, in accordance with s 82(1)(a) of the [PSMA] Act, I am immediately suspending you from the workplace on full pay…

10      When the suspension was reviewed at 60 days, a further letter dated 28 July 2023 provided:

Upon consideration of relevant factors relating to your matter, I am of the view that it is appropriate for you to remain suspended from duty on full pay…

11      A further letter was sent to the applicant on 16 August 2023, again referring to ‘full pay’:

The Department considers that your exclusion from the workplace on full pay is the appropriate way to manage the risk…

12      The allegations which triggered the period of suspension concerned the use of pepper spray on an alleged compliant juvenile detainee on 5 April 2023. The matter was resolved without disciplinary action against the union member and the suspension was lifted on 19 October 2023.

13      From 1 May 2023 to 18 May 2023, the union member was paid according to his established and rostered shift HDA. However, from 19 May 2023 the union member did not receive the HDA.

CSA Submissions

14      The CSA submitted that the union member was rostered to the position of Acting Senior Officer up to 8 June 2023. The CSA submits that this roster was published prior to the union members’ suspension. Based on this, the CSA argues that the union member should have been paid the HDA until 8 June 2023 and, therefore, has been underpaid by the Department between 18 May 2023 and 8 June 2023.

15      The CSA submits the union members’ suspension was on a ‘ready to work’ basis, meaning he was required to be ready to return to the workplace with minimum notice and that if he returned to work prior to 8 June 2023, he would have resumed the role of Acting Senior Officer.

16      The union member was in the Acting Senior Officer role for two years prior to his suspension.

17      The CSA applies for a declaration interpreting the term ‘full pay’ under s 46 of the IR Act, because it says that despite a number of references to ‘full pay’ in the Agreement, as well as the PSMA, no definitions are provided.

18      The CSA further submits that because the union member had the HDA included in his pay for the period of 1 May 2023 to 18 May 2023, this means that there is scope for the meaning of ‘full pay’ to include the HDA. It argues that if the HDA was not applicable to that period, then it would not have been paid in the first period.

19      The CSA argues that this ambiguity is what created the need for the Commission to interpret the term ‘full pay’ in the Agreement.

Department’s Submissions

20      The Department argues the CSA’s assertion that the PSMA interpretation would ultimately govern the interpretation of the Agreement, is flawed.

21      The Department contends that interpreting the term ‘full pay’ as it applies in the PSMA would require the principles of statutory construction. Whereas the interpretation of the terms in the Award or the Agreement require the application of different principles of interpretation. The Department submits that this may yield different results.

22      Furthermore, the Department says there is no dispute as to the meaning of ‘full pay’ in the Award and a declaration under s 46 of the IR Act as to the true meaning of the term used in the Award, would not resolve the dispute. As such, the Department argues the Arbitrator ought to exercise its discretion and not make a declaration.

Does the Commission Have Jurisdiction?

23      The essence of the application is for the Commission to declare ‘full pay’ as it is used in s 82(1) of the PSMA, by reference to the Agreement in the circumstances of an individual employee covered by the Agreement.

24      The CSA submits that the answer to the question is to be found in the meaning of ‘full pay’ in the Agreement. The CSA contends that the meaning of ‘full pay’ is necessarily different for different employees subject to s 82(1) of the PSMA, because the meaning will be found in the relevant award or industrial agreement that also covers those employees.

25      An employer, organisation or association bound by an award can apply at any time for the Commission to make a declaration on the true interpretation of an award under s 46 of the IR Act. This provision also applies to industrial agreements:

46. Interpretation of awards and orders by Commission

(1) At any time while an award is in force under this Act the Commission may, on the application of any employer, organisation, or association bound by the award —

(a) declare the true interpretation of the award; and

(b) where that declaration so requires, by order vary any provision of the award for the purpose of remedying any defect in, or giving fuller effect to, the provision.

(2) A declaration under this section may be made in the Commission’s reasons for decision but must be made in the form of an order if, within 7 days of the handing down of the Commission’s reasons for decision, any organisation, association, or employer bound by the award so requests.

(3) Subject to this Act, a declaration made under this section is binding on all courts and all persons with respect to the matter the subject of the declaration.

(4) Section 35 does not apply to or in relation to this section unless an order is made under subsection (1)(b) or under subsection (2).

(5) In this section award includes an order, including a General Order, made by the Commission under any provision of this Act other than this section and an industrial agreement.

26      In a matter, Minister for Corrective Services and Western Australian Prison Officers’ Union of Workers [2023] WAIRC 00909; (2023) 103 WAIG 1953 [28] - [32], [38], concerning the power of the Commission under s 46 of the IR Act in interpreting the provisions of the Minimum Conditions of Employment Act 1993 (WA) implied into awards and industrial agreements, Senior Commissioner Cosentino said:

First, s 46 of the Act is directed at the Commission’s own instruments. This is made clear by subsection (5) which says:

In this section award includes an order, including a General Order, made by the Commission under any provision of this Act other than this section and an industrial agreement (emphasis added) [28].

Subsection (1) also limits the Commission’s power to be exercised ‘while an award is in force under this Act’ (emphasis added) [29].

There is a sound and obvious reason for the Commission to be given authority to declare the true meaning of instruments that it makes. On the other hand, there is no policy reason suggested as to why the Commission would be given authority to declare the true meaning of the MCEA, binding on all courts and all persons with respect to the matter the subject of the declaration, when the Commission neither has a hand in the MCEA, nor in enforcing it: s 7 MCEA, s 83 Act [30].

Second, the nature of the Commission’s powers in s 46 does not sit comfortably with terms implied by statute. Under s 46(1)(b), the Commission can vary any provision of an award to remedy any defect or give fuller effect to the provision. Because the Commission cannot vary terms implied by statute, this indicates that such terms are not intended to be within the scope of s 46 [31].

Third, s 46(3) provides that a declaration made under the section is binding on all courts. This displaces to the common law position, which recognises that judicial decisions on the interpretation of legislation in other jurisdictions are not binding on courts that subsequently come to consider the meaning of a provision: D C Pearce and R S Geddes, Statutory Interpretation in Australia at [1.7] citing McNamara v Consumer Trading and Tenancy Tribunal [2005] HCA 55; (2005) 221 CLR 646 and Marshall v Director General, Department of Transport [2001] HCA 37; (2001) 205 CLR 603 [32].

…

Fifth, because the task of construing the statute is different to the task of construing an industrial agreement, this could create inconsistent or conflicting processes and outcomes in construing the same agreement. That is unlikely to have been parliament’s intention. Such instances might be rare in practice, but this case demonstrates that it is nevertheless possible [38].

27      The question before Senior Commissioner Cosentino is different to the question in this matter. The issue before the Senior Commissioner concerned the jurisdiction of the Commission to interpret a term implied into an award by statute. The CSA’s question concerns the jurisdiction of the Commission to interpret a term of a statute by reference to the meaning of a term in an award. Even so, similar reasoning applies to the task before me as follows.

28      The CSA brings an application before the Commission to declare the true meaning of a term under s 46 of the IR Act and such a declaration binds all courts and all persons with respect to the matter and subject of the declaration. The Commission’s jurisdiction under s 46 is confined and limited as described in Minister for Corrective Services [28] - [29]. The CSA’s application seeks an interpretation of a provision contained in legislation which is not an application to declare the true meaning of an award made under the IR Act.

29      In addition, under s 46 of the IR Act, the Commission may vary an award to remedy any defect or give fuller effect to the provision whereas the Commission is not empowered to amend the PSMA. Similarly to Minister for Corrective Services [31], the Commission cannot vary statutes and the power to interpret meaning which may require remedying a defect, is not consistent with the arguments advanced by the CSA. This argument being that the statutory term is adaptable by reference to the relevant award for the employee/s in question.

30      As set out in Minister for Corrective Services [32], the requirement to apply a declaration made under s 46 of the IR Act is not the same as judicial decisions concerning the interpretation of legislation in other jurisdictions.

31      Different principles are applied to the interpretation of awards to those applied to the interpretation of legislation. Applying Minister for Corrective Services [38], I conclude that it is unlikely the parliament intended the Commission to be empowered to interpret the meaning of a term in a statute, even where the term is also used in an award.

32      The CSA’s Form 1 - General Application filed on 2 May 2024, sets out that the CSA seeks the meaning of the term ‘full pay’ in the context of the Agreement. That is, the CSA is seeking the meaning of the term in the PSMA.

33      Inherent in the CSA’s question is that the context of the Agreement is an aid to the interpretation of the statutory term. The CSA’s Form 1 - General Application sets out the background to the application, being the suspension of a union member and the payment of HDA for part of the period of suspension. The Arbitrator does not have the necessary jurisdiction to declare the meaning of a statutory term under s 46 of the IR Act.

34      If the question goes to the meaning of the term ‘full pay’ in the Award within the context of the PSMA provisions for the suspension of an employee under ‘full pay’, I would not exercise my discretion to issue a declaration.

35      The CSA submits the term ‘full pay’ is used frequently within various leave entitlement clauses of the Agreement. The CSA cites four references to ‘full pay’ within the Agreement and that the meaning of ‘full pay’ is not defined.

36      The CSA submits that the meaning of ‘full pay’ in respect of personal leave (Clause 30.1(b)), paid parental leave (Clause 44.13(f)) and the effect of paid parental leave (Clause 44.20(b) and Clause 44.20(c)) is required because the term ‘full pay’ is not defined in the Agreement.

37      The CSA gave evidence of correspondence to a union member that refers to suspension on ‘full pay’. The correspondence refers to the term ‘full pay’ in the provisions of the PSMA and does not assist in interpreting the meaning of ‘full pay’ in the Agreement. However, this evidence does make plain the purpose of the application.

38      As set out in the Form 1 – General Application [24]: ‘Higher Duties Allowance is provided in clause 47 of the Agreement. It does not provide a determination of how HDA would apply to employees on suspension’.

39      The CSA seeks a determination on how a HDA would apply to employees on suspension and declaration of the meaning of ‘full pay’ in the context of the suspension of a union member.

40      The Agreement does not contain provisions regulating suspension of employees. A declaration of the meaning of ‘full pay’ in the context of personal leave or parental leave, does not assist in determining the meaning of ‘full pay’ in the context of suspension. A declaration under s 46 of the IR Act will not provide a meaning of ‘full pay’ as used in s 82(1) of the PSMA regarding the suspension of employees. An interpretation of the meaning of ‘full pay’ in the Agreement, will not assist the CSA resolve the issue for which it brings in this application.

41      In these circumstances, I will decline to make the declaration sought.

42      For the reasons set out above, I will dismiss the application.