Appeal against a decision of the Industrial Magistrate in matter number M 6/2022 given on 24 August 2023

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2024 WAIRC 00139

DELIVERED : THURSDAY, 28 MARCH 2024

FILE NO. : FBA 5 OF 2023

Appellant

AND

Minister for Corrective Services

Respondent

ON APPEAL FROM:

Jurisdiction : INDUSTRIAL MAGISTRATES COURT

Coram : INDUSTRIAL MAGISTRATE E O’DONNELL

Citation : 2023 WAIRC 00722

File No : M 6 OF 2022

Catchwords : Industrial law (WA) - Appeal against decision of Industrial Magistrate - Alleged contravention of industrial agreement - Entitlement to purchased leave - Scope of claim - Departure from case by party - Metwally principles considered - Interpretation of industrial agreement - Relevant principles applied - Appeal dismissed

Legislation : Industrial Relations Act 1979 (WA), s 7, s 41(4), s 49, ss 81(4), 81(4A), s 83(1), s 83(4A), s 83(9), s 83E(8), s 84, s 84(4)
Prisons Act (WA) s 36, s 37

Result : Appeal dismissed

Representation:

Counsel:

Appellant : Mr D Stojanoski of counsel

Respondent : Ms E Negus of counsel

Solicitors:

Appellant : Slater and Gordon

Respondent : State Solicitors Office of Western Australia

Case(s) referred to in reasons:

Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158

B.K Elsegood & D.S Elsegood & D.K Elsegood & Elsegood Holdings Pty Ltd & S.M. Elsegood & Falconcrest Holdings Pty Ltd v L M Mahon [2022] WAIRC 00631; (2022) 102 WAIG 1171

Byrne v Owners of Ceresa River Apartments Strata Plan 55597 [2017] WASCA 104

Callan v Smith [2021] WAIRC 00216; 101 WAIG 1155

Department of Justice v Western Australian Prison Officers Union of Workers [2020] WAIRC 00997

Director General, Department of Education v United Voice WA [2013] WASCA 287; (2013) 94 WAIG 1

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

L Schuler AG v Wickham Machine Tool Sales [1974] AC 235

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713

Pickard v John Heine and Son Ltd (1924) 35 CLR 1

Pritchard v M 6:8 Legal Pty Ltd [2024] WASCA 4

QR Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FCAFC 150

Reardon v Lagana [2019] WAIRC 00889; (2020) 100 WAIG 243

Short v FW Hercus Pty Ltd (1993) 46 IR 128

University of Wollongong v Metwally (2) [1985] HCA 28; (1985) 60 ALR 68

Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491

Western Australian Prison Officers Union of Workers v Minister for Corrective Services [2023] WAIRC 00722; (2023) 103 WAIG 1616

Reasons for Decision

THE FULL BENCH:

Background

1         Under cl 138 of the Department of Justice Prison Officers Industrial Agreement 2020 prison officers employed by the respondent at prisons throughout the State were able to purchase an additional two or three weeks’ annual leave, in addition to their accrued annual leave.  The arrangement required a prison officer to take a reduction in their annual salary, spread over the course of a financial year.  The terms of cl 138 of the Agreement, which has now been superseded by a later industrial agreement, was as follows:

138. Purchased Leave - 50/52 or 49/52 Salary Arrangement

138.1 An Officer may elect to enter into an arrangement whereby the Officer can purchase a block of two or three weeks' additional leave by agreeing to take a reduced Annualised Salary spread over a Leave Year provided the Officer has an accrued annual leave balance of less than 12 weeks.

138.2 Notwithstanding subclause 138.1, an Officer who has an accrued annual leave balance of 12 or more weeks may apply to purchase leave under the terms set out in subclause 138.3.  138.3 The Employer will give priority access to those Officers with carer responsibilities. Access to this entitlement will be subject to the Officer having satisfied the Employer's accrued leave management policy and operational requirements. For the purposes of this clause, 'operational requirements' may include:

(a) availability of suitable leave cover if required;

(b) cost implications;

(c) impact of prisoner service requirements; and

(d) impact on the work of other Officers.

138.4 The arrangements in this clause have been developed to encourage Officers working a three week Roster cycle to apply for the three week leave block. The Parties recognised that, for operational reasons, it is preferable that purchased leave is taken in three week blocks.

138.5 Applications for purchased leave must be received by 31 March prior to the Leave Year in which the leave will be taken.

138.6 Where in the previous five years, an Officer has two or more purchased leave periods not taken as leave, requiring salary adjustments to be made resulting in a repayment of the reduced salary, the Officer may be refused access to purchased leave for the current Leave Year.

138.7 Each Prison, prior to the start of the Leave Year, will determine the number of Officers who entered into a purchased leave salary arrangement and develop a leave roster. The roster should allocate this leave evenly throughout the Leave Year. Officers will be given the opportunity to nominate periods within the roster. Where more Officers than can be accommodated nominate for a particular block the Employer will decide in consultation with those Officers directly affected who is to be allocated the period. Subject to subclause 138.3, Officers will receive priority where the requested leave adjoins their existing annual leave roster.

138.8 During a purchased leave salary arrangement period Overtime (and the Dog Handlers Allowance) if applicable will continue to be paid on the Officer's Annualised Salary for the Officer's Classification and not the reduced salary arrangement rate.

138.9 In the event that the ordinary working hours of an Officer engaged on a part time basis are varied during the Leave Year, the salary paid for such leave taken will be adjusted on the last pay in July to take into account any variations to the Officer's rostered working hours during the previous Leave Year.

138.10 Purchased leave shall not accrue. In the event that the Officer is unable to take purchased leave in the Leave Year of purchase, the Officer's salary will be adjusted on the last Pay Period in July.

138.11 Officers unable to access purchased leave because of the size of their accrued annual leave balance shall be entitled to access up to six weeks' accrued annual leave in three week blocks in any one Leave Year. To access such leave, the Officer shall provide seven weeks' notice of the intention to take said accrued annual leave.

2         The appellant and the respondent were parties to the Agreement.  The Agreement was registered as an industrial agreement by order of the Commission dated 18 December 2020: Department of Justice v Western Australian Prison Officers Union of Workers [2020] WAIRC 00997.  By its terms, the Agreement applied throughout the State to prison officers and by s 41(4) of the Industrial Relations Act 1979 (WA), extended to and bound the employer and employed officers employed in the classifications set out in Schedule A – Annualised Salaries of the Agreement.

3         A dispute arose between the parties to the Agreement in relation to the application of cl 138.  Four members of the appellant, Mr Bisson, Mr McAteer, Mr Macaulay and Mr Deimel, employed as prison officers under the Agreement, alleged that they were denied the entitlement of purchased leave under cl 138 of the Agreement.  Under s 83(1) of the Act, the appellant commenced proceedings in the Industrial Magistrates Court against the respondent, alleging that the respondent had contravened or failed to comply with cl 138 of the Agreement. A penalty was sought. The respondent resisted the claim.

The claim

4         The claim made by the appellant at first instance was in the following terms:

1. At all material times, the Claimant, the Western Australian Prison Officers' Union (Union) was:

a) An organisation of employees within the meaning of the Industrial Relations Act 1979 (WA) (IR Act);

b) A named party to the Department of Justice Prison Offices' Industrial Agreement 2020 (Industrial Agreement);

c) A party with standing pursuant to section 83(1 )(c) of the IR Act.

2. At all material times, the Respondent, the Minister for Corrective Services was -

a) The person ultimately responsible for the appointment of prison officers and for the operation and management of prisons under the Prisons Act 1981 (WA);

b) A named party to the Industrial Agreement.

3. At all material times, Roger Bisson, Derick McAteer, Steve Macaulay and Bernie Deimel, (Members) each were/are:

c) A member of the Union;

d) An employee of the Respondent;

e) A person employed in one of the classifications listed in Schedule A of the Industrial Agreement.

B. Purchased leave under the Industrial Agreement

4. Clause 138 of the Industrial Agreement provides arrangements for employees of the Respondent to apply to take a period of additional paid leave of either two weeks or three weeks duration.

Particulars

i. The cost of salary during the additional leave is paid by the employee and not by the Respondent.

ii. Clause 138.1 of the Industrial Agreement provides each employee of the Respondent with an option to sacrifice a portion of his or her annual salary to acquire a block of two weeks or three weeks paid leave.

iii. Pursuant to clauses 138.5 and 138.7 of the Industrial Agreement, the arrangements to take purchased leave are to be finalised prior to the commencement of each Leave Year.

iv. By clause 7 of the Industrial Agreement, a new Leave Year commences on 1 July every calendar year.

v. Access to purchased leave may be restricted by the Respondent under subclauses 138.2 and 138.3 for those employees who have an accrued balance of annual leave of 12 weeks or greater.

5. Every application to take purchased leave must be individually assessed and considered for approval by the Respondent prior to the commencement of the upcoming Leave Year.

Particulars

i. By clause 138.5 of the Industrial Agreement, an employee who wishes to take a period of purchased leave must submit his or her application by no later than 31 March prior to the commencement of the upcoming Leave Year.

ii. Clause 138.7 of the Industrial Agreement requires the Respondent to formulate a roster having regard to the number of applicants who have requested to take purchased leave.

iii. Clause 138.7 of the Industrial Agreement also requires the Respondent to engage with those employees who have applied to take purchased leave at times that cannot be accommodated.

C. Contravention of Industrial Agreement

6. At all material times, the Industrial Agreement applied to the Respondent and to the Members as employees of the Respondent.

7. In the period from 31 March 2021 to 1 July 2021, the Respondent formulated the decisions to deny each Members' purchased leave application without engaging with the Member and without directing consideration to the matters that were relevant to each application.

Particulars

i. In the period up to 1 July 2021, each of the Members had -

(a) entered into arrangements to purchase additional leave pursuant to clause 138.1 of the Industrial Agreement; and

(b) submitted an application in the required form by 31 March 2021, seeking to take a period of purchased leave in the Leave Year commencing 1 July 2021.

ii. The Respondent did not engage with members to consider relevant factors such as -

(a) the needs and circumstances of the individual member;

(b) the extent to which the member had satisfied the Respondent's leave management policy;

(c) the specific impact, if any, of the proposed absence upon the Respondent's operational requirements;

(d) the interaction and impact of the proposed leave, if any, upon the work of other employees;

(e) any previously agreed arrangements with the Member;

(f) the custom and practice in the prison(s).

8. Pursuant to clauses 138. 7 and 138.3 of the Industrial Agreement, the Respondent was required to assess and consider the matters relevant to each application to take purchased leave as referred to in paragraph 7 above.

9. By not engaging with the Members and by not considering the matters relevant to each application to take purchased leave, the Respondent has contravened clause 138 of the Industrial Agreement.

D. Relief Sought

10. The Claimant seeks the following relief and orders pursuant to section 83 of the IR Act:

a) A finding that the Respondent has contravened clause 138 of the Industrial Agreement.

b) An order pursuant to section 83( 4) of the IR Act that the Respondent pay a penalty in respect of each contravention of the Industrial Agreement.

c) Such further orders as the Court deems appropriate.

5         The material parts of the statement of claim, asserting the alleged contraventions,  appear to be [7] and [9] under the heading ‘Contravention of Industrial Agreement’, which alleged that the respondent failed to ‘engage with’ and consider matters relevant to the appellant’s members’ applications for purchased leave.

Agreed facts

6         The matter before the Court proceeded largely on the basis of agreed facts.  The Statement of Agreed Facts provided as follows:

1. At all material times the following were members of the claimant union, were engaged as prison officers under s 13 of the Prisons Act 1981 (WA), and were working at the prisons listed below:

(a) Bernadine Deimel (Bandyup Prison);

(b) Derick McAteer (Casuarina Prison);

(c) Steve Macaulay (Albany Prison); and

(d) Roger Bisson (Casuarina Prison).

2. Prior to 1 July 2021, each of the above Officers had entered into arrangements to purchase additional leave pursuant to cl 138.1 of the Department of Justice Prison Officers' Industrial Agreement 2020.

3. Prior to 31 March 2021, each of the above Officers made respective applications to purchase leave 'blocks' during the following 'leave year', which ran from 1 July 2021 to 30 June 2022 (the Leave Year).

4. Each of the Prisons, listed at [l], did not offer any access to the purchased leave blocks during the Leave Year to any prison officer.

5. The Respondent did not consult with the prison officers listed at [l], nor with any other prison officer employed by the Respondent regarding their respective applications to take purchased leave blocks during the Leave Year.

The decision of the Court

7         The Court published its decision on 24 August 2023:  Western Australian Prison Officers Union of Workers v Minister for Corrective Services [2023] WAIRC 00722; (2023) 103 WAIG 1616.  In her reasons for decision, O’Donnell IM dismissed the appellant’s claim.  Her Honour concluded and found as follows:

(a) That the four officers entered into purchased leave salary arrangements under cl 138.1 of the Agreement for the 2021-2022 leave year;

(b) Not having accrued annual leave balances of 12 or more weeks, the respondent accepted the officers’ applications to enter into PLSAs and therefore, there was no contravention of cl 138.1 of the Agreement;

(c) Based on the evidence by way of agreed bundles of documents, and the witness statement of Mr McAteer, Albany Prison, Casuarina Prison and Bandyup Prison had complied with a number of the requirements of cl 138.7 of the Agreement, in that they had determined the number of officers who had entered into PLSAs; had developed a leave roster; and had given the officers the opportunity to nominate preferred leave blocks within it;

(d) That the prisons did not, arguably contrary to cl 138.7, then proceed to offer the officers access to the purchased leave blocks;

(e) That the prisons, based on operational reasons, did not have the capacity to offer the officers additional leave in accordance with their PLSAs;

(f) That the prisons ‘were experiencing a great deal of pressure on their human resources, such that they had concluded that they could not afford to allow officers to take additional leave on top of their usual quota of annual leave’;

(g) In relation to how a determination that ‘more officers than can be accommodated’ can be determined, in relation to a particular leave block, there are no matters specified in the Agreement in order to determine this issue;

(h) Regard needed to be paid to operational needs and that overtime was proposed as a solution to cover for purchased leave, was evidence of prison resources being stretched thin;

(i) For the purposes of the 2021-2022 leave year, once having received the officers’ nominations for purchased leave, even if one officer nominated for a particular block, this would constitute more than what could be accommodated in accordance with cl 138.7;

(j) That by inference, the reason that the prisons did not offer the officers purchased leave blocks was because they could not cover for the absences of those officers;

(k) In those circumstances it would have been pointless to engage in consultation with the officers as to who should be allocated leave blocks, where none were being offered; and

(l) Accordingly, no contravention of cl 138 of the Agreement had been made out.

The Appeal

8         The appellant now appeals against the decision of the Court under s 84 of the Act.

Appeal grounds

Ground 1

The Industrial Magistrate erred in law in that the Industrial Magistrate applied the wrong principle of law by evaluating the requirement of "consultation" by reference to a likely or expected outcome.

Particulars

a. The Industrial Magistrate failed to properly consider the obligation to consult when she found at [52] and [58] of her decision delivered 24 August 20231 (Decision) that the act of consultation would have been "pointless".

b. The proper approach articulated in QR Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia is that the requirement to comply with a consultation provision contained in an industrial agreement does not change merely because an employer would not have been expected to be persuaded to a different course simply because of the views expressed by an employee.

c. The finding made in error by the Industrial Magistrate with respect to the perceived value of consultation led her to the further error at [59] of the Decision in holding that willful non-compliance with the consultation provision in this case was not a contravention of the Department of Justice Prison Officers' Industrial Agreement 2020 (Agreement).

Ground 2

The Industrial Magistrate erred in fact by identifying that the words found at 138.7 do not provide a necessary consideration when in fact those words do.

Particulars

a. The Industrial Magistrate erred in fact at [45] when she determined that the "[t]he Agreement does not set out any particular considerations that the prisons ought to take into account when determining whether a particular purchased leave block is over-subscribed ... "

b. The reference in clause 138.7 of the Agreement to "consultation" with Officers means the views expressed by those employees must be considered.

Ground 3

The Industrial Magistrate erred in law when she did not apply the principles of interpretation of an industrial agreement in her consideration of whether there was a contravention or a failure to comply with a provision of the Agreement.

Particulars

a. The Industrial Magistrate determined at [55] and [56] of the decision that the actions of the Respondent did not contravene clause 138 of the Agreement, and that the Respondent had complied with that clause "to the extent that was practicable under all the circumstances".

b. The Industrial Magistrate did not approach the question of compliance based on a proper construction of clause 138 to identify the obligations arising under that clause.

c. In determining whether a party has contravened or failed to comply with a provision of an industrial instrument, the Industrial Magistrate's Court must necessarily interpret the provisions of an industrial agreement in accordance with the principles that apply to the interpretation of industrial agreements.

Ground 4

The Industrial Magistrate erred in law by determining that non-compliance with an entitlement provision in an industrial agreement may not be a contravention within the meaning of s 83 Industrial Relations Act 1979.

Particulars

a. The Industrial Magistrate acknowledged at [56], [58] and [59] of her Decision that the Respondent did not comply with all the obligations arising under clause 138 of the Agreement.

b. The findings noted at [56], [58] and [59] of the Decision are not consistent with her overall conclusion at [55] of the Decision that there has been no contravention of clause 138.

Ground 5

The Industrial Magistrate erred in law by re-writing the Agreement.

Particulars

a. At [48] and [51] of the Decision the Industrial Magistrate concluded that even if "one" officer were granted access to a leave block then that was "more than could be accommodated".

b. The Industrial Magistrate rewrote the Agreement by determining at [48] and [51] that "one" officer will constitute over accommodation.

c. Clause 138.7 is plain on its words when it says "[w]here more Officers than can be accommodated nominate for a particular block" [emphasis added], meaning there must be more than one officer to constitute over accommodation.

Ground 6

The Industrial Magistrate erred at law by making findings in an arbitrary way and without any proper evidentiary basis in a way that amounted to Wednesbury unreasonableness.

Particulars

a. The Industrial Magistrate made findings that were arbitrary in the sense that certain findings were the result of a random choice rather than reasoned conclusions supported by the words of the Agreement or drawn from clear evidence, such as:

i. The Industrial Magistrate at [32]-[35] of the Decision concluded that overtime could not be used to cover purchased leave despite the following provisions of the Agreement:

• The Agreement cl 21.7 says there is to be no restrictions on the use of overtime in accordance with the Agreement.

• The Agreement cl 24 lists circumstances where overtime cannot be used. Purchased leave is not one of those restrictions.

• Accordingly, overtime could be used to cover purchased leave and any direction or advice by the Department would otherwise be a contravention of the Agreement and or/ a "further claim" by the Department which is expressly not permitted under cl 8.3 of the Agreement.

ii. The Industrial Magistrate at [34] of the Decision chose to infer, without any evidence to draw that inference, that Bandyup Prison was experiencing a shortage of officers.

iii. The Industrial Magistrate at [44] of the Decision concluded that " ... it is clear that the prisons were experiencing a great deal of pressure on their human resources, such that they had concluded that they could not afford to allow officers to take additional leave on top of their usual quota of annual leave." This was not available to her to make on the evidence and she took into account irrelevant considerations such as:

• "Well, take Banksia Hill currently, for example, it's all over the news. Do you really think that people are going to be given purchased leave there? It would be ludicrous. "3

• Arbitrarily taking into account news reports, especially when none of that was in evidence is an irrelevant consideration and Wednesbury unreasonable.

• Taking into account circumstances at Banksia Hill are irrelevant considerations as staff at Banksia Hill are not eligible to be, and are not covered by the Agreement.

iv. The Industrial Magistrate at [49] of the Decision concluded, with no evidentiary basis, that because something happened at one prison, then it must have been the case for other prisons.

v. The Industrial Magistrate's statement at [51] of the Decision refers to a matter not in evidence when she inferred that the employer could not cover purchased leave absences, when there was no evidence of that.

9         The appellant seeks an order from the Full Bench, under s 84(4) of the Act, to reverse, vary or amend the decision of the Court.

Two preliminary issues

Appellant’s departure from the claim

10      At the hearing of the appeal the Full Bench raised with the parties whether the case as put to the Court departed from the statement of claim as filed.  This was because the claim (set out above) materially maintained that the respondent failed to ‘engage with’ the appellant’s members and ‘consider’ various matters, as particularised at [7ii] of the particulars of claim. It was then asserted by the appellant at [9] of the claim, that by not so engaging with the members and taking into consideration the matters set out, the respondent contravened cl 138 of the Agreement.

11      However, the case presented to the Court by the appellant in its written and oral submissions, departed from the appellant’s claim.  The appellant alleged that the officers electing to enter into a PLSA under cl 138.1, must be given the leave requested (see appellant’s written submissions at [5]-[6], [32]-[36] at AB12-13, 17-18)). In addition to the allegation that the respondent contravened the Agreement by not granting the leave to the officers who were ‘automatically entitled’ (i.e. those electing to enter a PLSA under cl 138.1), the appellant also contended at [36] of its written submissions (see AB17-18) that the respondent had contravened the Agreement as follows:

36. The evidence is that the Respondent has contravened the Industrial Agreement by failing to:

a. Allow officers to apply for purchased leave by not offering any access to purchased leave blocks to any Officer despite their automatically eligible[sic] or not;

b. Determine the number of Officers who entered into a purchased leave salary arrangement;

c. Develop a roster allocating leave evenly throughout the Leave Year;

d. Allow Officers to be given an opportunity to nominate periods within a roster;

e. Consult with Officers that have applied for the same purchased leave period as to who will be allocated that period.

12      None of these alleged contraventions, except perhaps at [36e], appear in the statement of claim.  It was not contended in the statement of claim, that the specific provisions set out immediately above, were contravened by the respondent. The specific allegations at [36a-36d] as above, advanced as contraventions or failures to comply in the appellant’s written submissions, do not appear in the statement of claim at [7], [8] or [9], as alleged contraventions.  The respondent’s response at [6]-[8] clearly considered the appellant’s claimed contravention as one alleging a failure to consult (see AB10).  The respondent’s written submissions engaged with the appellant’s written submissions at first instance and were responsive to these written submissions of the appellant (see AB19-24).  The appellant’s oral submissions in opening also contended to the same effect as in its written submissions (see pp 4-6, 16-17 transcript). Her Honour appears to have understood the appellant’s case as it was outlined in the written and oral submissions (see p 10 transcript).

13      The Court’s jurisdiction and powers are set out in Part III Division 2 of the Act.  The proceedings at first instance were commenced under s 83(1) which at the time of the proceedings enabled a person to claim that there had been a contravention of an ‘entitlement provision’.  By s 7 of the Act, an ‘entitlement provision’ includes a provision of an industrial agreement.  The Court’s powers to grant a remedy on an application to enforce an entitlement provision, only arises if the contravention or failure to comply, is proved: s 81(4) Act. Whilst a contravention of an entitlement provision is not an offence, it is taken to be a civil penalty provision for the purposes of s 83E(8) and the civil standard of proof applies:  s 83(9) Act.  The exercise of the Court’s jurisdiction and powers is also governed by the Industrial Magistrate’s Court (General Regulations) 2005, in particular those provisions in relation to making and responding to a claim (as defined in reg 4) in Part 3 and the powers of the Court in relation to a case (as defined in reg 4).

14      As identified by the respondent in its submissions to the Full Bench in response to the issue raised, the Full Bench in Callan v Smith [2021] WAIRC 00216; 101 WAIG 1155, held that for the purposes of the imposition of a penalty under s 83(4A) of the Act, a penalty may be imposed by the Court in respect of each single, identifiable, individual contravention or failure to comply that is proved.  For the purposes of a contravention being proved and the imposition of a penalty by the Court under ss 81(4) and 81(4A) of the Act, it is the particular, single contravention of an entitlement provision pleaded under s 83(1) of the Act, that grounds the Court’s jurisdiction and power.

15      Given the proceedings before the Court are enforcement proceedings which may result in penalties being imposed on a party, it is necessary that a claimant advance a claim with a degree of specificity.  The alleged contravention under s 83(1) of the Act, as noted above in this matter, is encapsulated at [9] of the statement of claim.  In essence, it alleged that the respondent failed to consult with the appellant’s members and consider the matters set out at [7ii].  Nowhere in the statement of claim with respect, is it alleged that the respondent contravened the Agreement because it failed to enable the members to take leave who had elected to do so under cl 138.1, and to enter into a PLSA and who, on the appellant’s argued case at first instance, therefore had an automatic right to the leave.

16      In the absence of an amendment to the statement of claim, the only contravention capable of being proved, and being amenable to the Court’s power under s 81(4A) to impose a penalty, was that pleaded at [9] of the statement of claim.  With respect, the effect of the departure by the appellant from the pleaded case at first instance, was to take both the respondent and her Honour down another pathway and for her Honour to make findings, set out at [13] and [14] above, that, to the extent that they did not relate to specific, identified, alleged contraventions, were strictly not material to the issues necessary to determine for the purposes of finding the contraventions proven.

17      Whilst, in its submissions on this point, the appellant referred to the decision of the Full Bench in Reardon v Lagana [2019] WAIRC 00889; (2020) 100 WAIG 243, that case is not of assistance to the appellant.  In Reardon, the issue arising was the nature of an appeal to the Full Bench under s 84 of the Act.  It was held that as with appeals from decisions of the Commission under s 49 of the Act, appeals under s 84 are in the nature of a rehearing and not an appeal in the strict sense:  per Kenner CC at [22] – [26] (Emmanuel and Walkington CC agreeing).

18      The issue arising now is not the nature of the appeal to the Full Bench, but the scope of the powers of the Industrial Magistrate’s Court in proceedings for a contravention of an entitlement provision.   When considering an appeal from the Court under s 84 of the Act, the Full Bench’s jurisdiction and powers are not at large. They are confined to those exercisable by the Court under Part III Division 2 of the Act, in this case s 83, in relation to the Full Bench’s powers under s 84(4)(a) and (b) when deciding an appeal.

19      Given the claim before the Court, it would not have been open for the Court to conclude that the respondent contravened cl 138 by failing to allow the relevant officers to take purchased leave in the 2021-2022 leave year as this was not the alleged contravention set out the claim.  To the extent that any of the grounds of appeal go beyond the alleged contravention in the claim before the Court, they are arguably also not able to be dealt with by the Full Bench.

20      However, in the event we are incorrect as to these matters, we will proceed to consider the grounds of appeal as advanced, further below.

A Metwally issue?

21      The second issue raised by the Full Bench with the parties was whether the respondent, by canvassing the history of cl 138 of the Agreement in its written and oral submissions on the appeal, matters which were not advanced as a part of the respondent’s case at first instance before the Court, constituted a new point being raised on the appeal and therefore, contrary to the principles developed in University of Wollongong v Metwally (2) [1985] HCA 28; (1985) 60 ALR 68.  Both parties referred to B.K Elsegood & D.S Elsegood & D.K Elsegood & Elsegood Holdings Pty Ltd & S.M. Elsegood & Falconcrest Holdings Pty Ltd v L M Mahon [2022] WAIRC 00631; (2022) 102 WAIG 1171 where at [61]-[63] Kenner CC said:

61 The general approach is that a party is bound by its case and, except in very limited circumstances, a point not raised in proceedings may not be raised for the first time on appeal. The relevant principles applicable to this issue were set out in some detail by Smith AP (as she then was) in Alfresco Concepts Pty Ltd v Troy Patrick Franse [2015] WAIRC 00244; (2015) 95 WAIG 437. Whilst that was an appeal to the Full Bench under s 49 of the Act from a decision of the Commission, her Honour considered and applied the general principles applicable to appellate intervention. At [114] Smith AP said:

114 …In Kingstyle Investments, the principles that apply when a new point is sought to be raised on an appeal were considered.  At [50] - [54] I observed:

Appeals brought under s 49 of the Industrial Relations Act 1979 (WA) (the IR Act) are not by way of rehearing, but are appeals in the strict sense:  Hamersley Iron Pty Ltd v Association of Draughting, Supervisory and Technical Employees, Western Australian Branch (1984) 64 WAIG 852; see the discussion in The Minister for Health v Drake-Brockman [2012] WAIRC 00150; (2012) 92 WAIG 203 [73] (Smith AP and Beech CC).  Fresh evidence can, however, be admitted by a Full Bench where special or exceptional circumstances are raised:  Federated Clerks' Union of Australia, Industrial Union of Workers, WA Branch v George Moss Ltd (1990) 70 WAIG 3040.  This does not allow a matter to be heard without regard to the manner in which a matter was conducted at first instance.  In Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50, Martin CJ set out the circumstances when a new point may be raised on appeal to an appellate body at [49] - [52]:

49 [I]n University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68, the High Court observed:

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so (71).

50 Similar observations were made by the Court of Appeal of New South Wales in the case under appeal in Coulton v Holcombe. Their Honours observations as to:

... the finality of litigation; the difficulty of inducing an appeal court to consider new facts; the undesirability of encouraging tactical decisions not to present an issue at first instance: keeping it in reserve for appeal; and the need for vigilance to avoid injustice to a party having to meet new facts and new issues of law for the first time at the appeal court

were endorsed by the plurality in Coulton v Holcombe (8) as important principles underpinning the public interest in the finality of litigation: see also Liftronic Pty Ltd v Unver [2001] HCA 24; (2001) 179 ALR 321, 330 - 331 (Gummow and Callinan JJ).

51 However, this is not to say that a new point can never be raised on appeal. In Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491, the plurality (Mason CJ, Wilson, Brennan and Dawson JJ) observed:

It is true that in Maloney v Commissioner for Railways (1978) 18 ALR 147, 152 it was recognised that in 'very exceptional cases' a plaintiff's omission to put at trial a case formulated on appeal may not be conclusive against him. But it was pointed out that the opportunity to assert the new case at another trial should only be granted where the interests of justice require it and such a course can be taken without prejudice to the defendant. No exceptional circumstances arise in this case where the parties adopted the course which they took of their own choice (498).

52 It is significant to note that the High Court has twice described the circumstances in which a party will be allowed to raise a new point on appeal as 'very exceptional'. Such a course will only be permitted if two requirements are met. First, the interests of justice must require determination of the new point. Second, there must be no prejudice to the party against whom the new point is taken.

…

(paragraph deleted)

…

In Minister for Education v Liquor Hospitality and Miscellaneous Union, Western Australian Branch [2011] WAIRC 00818; (2011) 91 WAIG 1839 [23] - [24], I had regard to the principles set out in Water Board v Moustakas (1988) 180 CLR 491, 497 - 498 and then had regard to the observations of Branson and Katz JJ in H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 [7] - [8] where their Honours said:

In our view, the readiness with which appeal courts have in the past been satisfied that it is expedient in the interests of justice to allow a fresh point to be argued and determined on appeal is unlikely to continue into the future. The volume and complexity of the cases presently required to be heard and determined by the intermediate appellate courts of Australia is such that it is increasingly important that such courts are able to devote their time to the genuine review of first instance decisions. It is becoming increasingly difficult, in our view, to establish that it is expedient in the interests of justice that the time of three or more judges should be spent giving original consideration to issues that ought to have been raised before the primary judge. The interests of justice in this sense extend beyond the interests of the parties to the appeal to encompass the interests of other litigants whose appeals require hearing and determination, and the broad public interest in efficient judicial administration.

I then observed at [25] - [26]:

25 When assessing whether it would be expedient in the interests of justice to allow a new point to be raised Branson and Katz JJ also had regard to whether the point had any merit [9].

26 From these passages the following principles guide when a finding could be made that it is expedient and in the interests of justice to entertain a point:

(a) The point must be one of construction or of law and not be met by calling evidence.

(b) In deciding whether or not a point was raised at trial no narrow or technical view should be taken. Ordinarily the pleadings will be of assistance.

(c) In very exceptional cases an omission to put a case formulated on appeal may not be conclusive. The opportunity to assert the new case should be granted only where the interests of justice require it and such a course can be taken without prejudice to the defendant.

(d) Consideration of the interests of justice should extend to a consideration of relevant matters beyond the interests of the parties to the interests of other litigants and efficient case management.

(e) When assessing the interests of justice, the merit of the new point sought to be raised is a relevant consideration.

62 Her Honour also referred to decisions of the Court of Appeal dealing with the same issue as follows at [115]-[116]:

115 The principles that govern the circumstances in which a party would be allowed to raise on appeal an argument which had not been raised in proceedings below were recently applied by the Court of Appeal in Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd [2014] WASCA 28.  When summarising the well-established principles Martin CJ (Pullin and Murphy JJA agreeing) [85] said in relation to the prejudice which a party may suffer as a result of the other party being able to raise a new argument on appeal that the following comments of Gleeson CJ, McHugh and Gummow JJ in Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 [51] are of direct relevance.  In Whisprun, their Honours said:

It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial (University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481 at 483; Coulton v Holcombe (1986) 162 CLR 1 at 8-9; Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 at 875 [44]; Water Board v Moustakas (1988) 180 CLR 491 at 496-497; cf R v Birks (1990) 19 NSWLR 677 at 683-685). Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action (Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645-646). Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs.

116 Recently applied by Martin CJ (Mazza JA and Hall J agreeing) in Calandra v Civil Aviation Safety Authority [2015] WASCA 31 [19].

63 It is not appropriate for the appellants to put a submission to the Full Bench on appeal that her Honour failed to make a particular finding at first instance, when the affirmative proposition was never fairly and squarely raised as a part of the appellants’ case before the court. This is not a question of jurisdiction:  SGS Australia v Taylor (1993) 73 WAIG 1760. The General Order has application to all employees within the Commission’s jurisdiction throughout the State. By its terms, it contains no exclusions of categories of employees.

22      The appellant contended that the respondent, in raising the history of cl 138 of the Agreement was acting contrary to these principles.  The respondent contended that either the issues advanced now on the appeal were not a new point, or exceptional circumstances exist such that they ought to be entertained by the Full Bench in the interests of justice.

23      The appellant submitted that a number of matters raised by the respondent on the appeal, but not at first instance, could have been met by further evidence from the appellant.  These include assertions made by the respondent concerning the uncertainty of the number of officers who may elect to purchase leave each year; the numbers of officers on other forms of long term leave; the demand for officers and recruitment of new officers and the working of overtime.  The submissions were made to the effect that it could not have been the objective intention of the parties to the Agreement to enable all officers electing to take purchased leave to bank the leave, in light of these uncertainties regarding staffing levels. 

24      It was further submitted by the appellant that the respondent’s attempts to draw inferences from historical changes to the 2010 Agreement and attempts to ascertain the objective intention of those changes, as intending to limit rather than expand access to purchased leave, were impermissible.  The appellant contended that it could have led evidence at first instance rebutting these contentions and would be denied the opportunity to do so, and it would be inherently unfair, for the respondent to raise these matters now.

25      For the respondent, it was contended that whilst accepting the principles regarding new points on appeal are well established, there is doubt whether what is raised now, in terms of the history of cl 138, is an application to interpret the Agreement, is a new point.  Rather, the respondent’s submission was, that the relevant history of cl 138, as a matter of record of the Commission, is a part of the advancement of submissions supporting the construction of cl 138 that the respondent put before the Court at first instance.

26      The respondent relied upon the decision of the Court of Appeal in Byrne v Owners of Ceresa River Apartments Strata Plan 55597 [2017] WASCA 104.  The issue in that matter was the proper construction of a by-law.  On appeal, one ground advanced by the appellant was that the decision at first instance was contrary to s 42(3) of the Strata Titles Act, which was not an argument put in the first instance proceedings.  In its decision, the Court of Appeal concluded at [48]-[49] that although the argument was not specifically put in relation to s 42(3) of the ST Act, it bore upon the proper meaning of the relevant by-law, and in this sense, it was doubted whether raising the matter on appeal was a new point and cited Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491, at 497.  It was held that even if the matter raised could be considered to be a new point, and only in exceptional circumstances could it be considered, it was in the interests of justice to do so because the point raised supplemented the arguments as to the proper meaning of the by-law.

27      The respondent drew support from this case, and adopted the same reasoning, to the effect that if the history of the Agreement is a new point, then it should be able to be advanced as an argument available to support the proper construction of the Agreement.  In response to the submission by the appellant that the issue of ‘industrial context’ was also new, the same principles apply and in any event, some reference was made to this issue in the respondent’s case at first instance.

28      In our view, the respondent’s approach to this issue is to be preferred.  In the case of ambiguity in the terms of industrial instruments, some regard may be had to the history and surrounding circumstances of the provision in question, in cases where that history is contained in documents of record of the court or tribunal concerned:  Pickard v John Heine and Son Ltd (1924) 35 CLR 1; Short v FW Hercus Pty Ltd (1993) 46 IR 128 per Burchett J at 133-136 (Drummond J agreeing at 139).

29      This approach commends itself to both awards and industrial agreements, where for example, a particular clause may have been consistently adopted by parties over successive iterations of the agreement.  Reliance cannot be placed on the conduct of parties subsequent to the making of an agreement containing the provision in question, which approach was described by Lord Wilberforce as a ‘refuge of the desperate’ in L Schuler AG v Wickham Machine Tool Sales [1974] AC 235 at 261.  However, Burchett J in Short, did not consider that this qualification affected the ability to have regard, in appropriate circumstances, to the history of a provision in an industrial instrument.  This is consistent with the broad approach to the interpretation of industrial instruments discussed at [34] below.

30      Accordingly, there may be doubt whether the history of cl 138 of the Agreement is a ‘new point’ for the purposes of the Metwally principle.  However, as with the approach taken by the Court of Appeal in Byrne, even if it is, the respondent’s reference to the history of the clause in the Agreement is supplementary to the submissions put at first instance regarding the proper interpretation of cl 138 and it would be in the interests of justice to consider them.  The history of cl 138, as contained in prior industrial instruments as a matter of record, and on which the appellant was also able to make submissions, is not evidentiary material of the kind that may have been met by evidence from the appellant, and therefore, is not excluded on this basis.

31      As to the appellant’s objections to matters raised at [17] of the respondent’s written outline of submissions regarding the merits of the appeal grounds, these are not matters that we have found necessary to consider in determining the appeal.

Principles to apply on the appeal

Nature of the appeal

32      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 Gaegler 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]).

33      In this case, the issue at first instance, was the proper construction of cl 138 of the Agreement, as applied to the Statement of 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 138 of the Agreement, in the context of the facts as agreed or as found.

Interpretation of industrial instruments

34      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] to [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].

Consideration of appeal grounds

Grounds 1 and 4

35      These two grounds can be conveniently dealt with together as they both assert, in effect, that the learned Industrial Magistrate erred in concluding that consultation with the affected officers under cl 138.7 would be ‘pointless’, and that a contravention of cl 138 occurred.

36      The appellant submitted that in cases of a consultation obligation contained in an industrial instrument, then the obligation must be complied with, regardless of a likely, expected or perceived outcome.  In this respect, reliance was placed by the appellant on QR Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FCAFC 150 where at [32] Keane CJ and Marshall J held that a consultation obligation in an industrial agreement had to be complied with, regardless of whether consultation may have been successful, to change an employer’s attitude to an issue.

37      It was therefore argued that the learned Industrial Magistrate erred in finding that the duty to consult in cl 138.7 of the Agreement was not made out and that such would be ‘pointless’.  This is especially so, on the appellant’s submissions, in circumstances where the respondent admitted, as an agreed fact, that no such consultation occurred.

38      In this context, as to ground 4, the appellant submitted that on a reading of her Honour’s reasons, at [56], [58] and [59], it was open to conclude that the learned Industrial Magistrate found that the respondent failed to consult with the relevant officers, even though this was inconsistent with her Honour’s conclusion at [55] of her reasons, that there had been no contravention of cl 138 of the Agreement.  The upshot of the appellant’s submissions on this point was, as we understood it, that having concluded that there was a contravention of cl 138.7, her Honour was obliged, under s 83(4)(a) of the Act, to issue a caution, impose a penalty and also, could make an order to prevent further contraventions or failures to comply with cl 138.7.

39      On behalf of the respondent, it was contended that it was unclear from her Honour’s reasons whether she did conclude that the respondent failed to comply with the Agreement because the respondent did not consult as required by cl 138.7, however this was not a contravention, as such consultation would have been ‘pointless’.  On the other hand, the respondent submitted that the learned Industrial Magistrate from her reasons, may have concluded that it was a matter of practicality when considering the respondent’s duty to consult with the officers.  Regardless of which approach to her Honour’s reasons one takes, the respondent’s submission was that the learned Industrial Magistrate’s ultimate conclusion that there was no contravention of cl 138.7 of the Agreement was the correct conclusion.

40      Based on the terms of cl 138.7, the respondent contended that the requirement to consult set out in this subclause is a specific obligation which arises only in circumstances where the respondent determines that officers can be accommodated for a particular leave block. In circumstances where the employer’s decision is that no officers will be accommodated, as no leave can be taken, there can be no decision in relation to ‘who is to be allocated the period’ under cl 138.7 and thus, the requirement to consult does not arise.  Looking at it another way, the respondent contended that in the circumstances, there would be nothing to be gained from consultation, as there would be nothing to consult the officers about.  Accordingly, in that sense, the respondent submitted that it was open for her Honour to conclude that in the circumstances before the Court, it would have been pointless for the respondent to consult with the officers and her conclusion was correct.

41      The crux of the issue arising in relation to this ground is whether the obligation on the respondent under cl 138.7, to ‘decide in consultation with those officers directly affected, who is to be allocated the period’, is an absolute obligation, or alternatively, whether it is contingent on purchased leave being offered to be taken in any leave year. 

42      From the language of cl 138.7 the preparation of a roster and the nomination of a period by an officer, is for the purposes of planning who will take purchased leave at what time.  There can be no other reason for taking these steps.  The preparation of a roster is consistent with the requirements of cl 80 – Annual Leave Roster of the Agreement, that sets out an orderly process for officers taking annual leave in accordance with leave cycles.

43      It is only in cases where there are more officers than can be accommodated in a particular leave block, that the employer is obliged to consult with the officers and work out who will be allocated what leave period in the roster.  The evidence at first instance was that this was historically done by a ballot, with names of officers drawn out of a bag (see AB 96-97). 

44      The obligation to consult under cl 138.7, in relation to leave blocks to be allocated to officers in any given leave year, can only reasonably be for the purposes of determining which officers will be allocated purchased leave in particular leave blocks, to be taken in accordance with the leave roster prepared.  If there is no purchased annual leave available to be taken by officers in any leave year, that is no officers could be accommodated because of operational reasons of a prison(s), then the obligation to consult with the officers does not arise.

45      Whilst her Honour seemed to suggest at [59] of her reasons that there may have been a ‘technical breach’ of cl 138.7 to consult in these circumstances, with such consultation being pointless, the better view is that no such obligation arose in the first place.  Therefore in our view, her Honour came to the correct conclusion but perhaps for the wrong reasons.  These grounds are not made out.

Ground 2

46      In some senses, this ground is a modification and a recasting of the appellant’s assertion in ground 1 that the respondent failed to consult with the affected officers. It was contended that the learned Industrial Magistrate erred in concluding at [45] of her reasons that cl 138.7 does not set out any particular considerations for prisons to take into account when determining whether a particular leave block is oversubscribed. This conclusion is correct.  Clause 138.7 does not specify any particular criteria for the employer to consider.

47      However, in both the appellant’s written and oral submissions to the Full Bench, whilst the appellant appeared to accept the above proposition, the submission in essence returned to the appellant’s contention that the fact of oversubscription, gave rise to the duty to consult.

48      For the reasons expressed above in relation to grounds 1 and 4, there was no obligation to consult the officers in the circumstances of the matter before the Court at first instance and therefore this ground is not made out.

Ground 3

49      The appellant submitted that the learned Industrial Magistrate failed to apply the relevant authorities dealing with principles of construction applicable to industrial instruments, as set out above, when dealing with the claim.  That much is to be accepted.  Her Honour did not turn her mind to the application of these principles in approaching the issues to be determined and with respect, she should have done so.  However, the ultimate issue is whether the conclusion that her Honour reached that there had not been a contravention of cl 138 in the circumstances as alleged, was correct.

50      The gravamen of this ground, as it was developed in oral submissions by the appellant before the Full Bench, was that the learned Industrial Magistrate erred in not concluding that once an officer enters a PLSA, then on a correct construction of cl 138 of the Agreement, the officer must be granted the leave (see 15-16 transcript Full Bench).  Whilst it was put in submissions that the appellant’s construction of cl 138 meant that the respondent must ‘arrange for’ the taking of purchased leave, when pressed as to what was intended by ‘arranged for’, counsel for the appellant accepted that the appellant’s ultimate contention is that the leave purchased must be given to the officer to take.  This would seem to be subject to the appellant’s evidence at first instance, that in the case of a ballot where leave blocks in the roster are oversubscribed, where there are more officers than can be accommodated for a particular leave block, and an officer is not successful on a ballot, the officer is paid back their salary for the purchased leave, at the end of the financial year.

51      In addressing this ground of appeal, we will first consider the construction of cl 138  in general terms.

52      Clause 138 of the Agreement have been set out above.  The clause enables prison officers to access additional purchased leave, over and above the entitlement to leave under the Agreement.  For the purposes of the entitlement to purchased leave, two categories of prison officer are covered.  The first is those who have accrued leave balances of less than 12 weeks.  The second is those prison officers who have a leave balance of 12 weeks or more.

53      By cl 138.1, those in the first category can elect to purchase additional leave and enter into a PLSA (i.e. these officers have a right to do so).  By cl 138.2 those in the second category, may apply to enter into a PLSA.  In this latter case, the employer must agree.

54      By cl 138.5 ‘applications’ for purchased leave are to be made by 31 March in any particular leave year.  For the purposes of cl 138, a ‘leave year’, as defined in cl 7 – Definitions of the Agreement, means 1 July to 30 June.  As a matter of construction, cl 138.5 draws no distinction between those officers who can elect to enter into a PLSA, and those who must apply to enter into a PLSA. Accordingly, the application date requirement of 31 March in each year, must apply to both.

55      If a prison officer has, in the previous five years to their application or their election to enter a PLSA, had two or more periods of purchased leave previously acquired and not taken, the purchased leave sought for the current year may be refused.

56      Notably, cl 138.2, but not cl 138.1, is expressly subject to the requirements of cl 138.3.  This is consistent, with the text of cls 138.1, 138.2 and 138.3. This appears consistent with the evident intent of cl 138.1, as conferring a right to participate in a PLSA, as opposed to an application to do so, as provided for in cl 138.2. 

57      Thus, for those prison officers with 12 or more weeks of accrued leave (the cl 138.2 officers), their application to participate in the PLSA scheme is subject to the employer’s leave management policy and consideration of the employer’s operational requirements, as set out in cl 138.3(a) to (d) inclusive.  From its terms therefore, those officers in the cl 138.2 category, are subject to a ‘gateway’ in cl 138.3, for access to the scheme, but those in the cl 138.1 category, have a right to enter into a PLSA, without such restriction.

58      Those officers electing under cl 138.1 and those who have been granted access under cl 138.2, applying the requirements of cl 138.3, are then subject to the process as prescribed by cl 138.7.  This process requires:

(a) Each prison, at the start of a Leave Year, to determine the number of prison officers who have entered into a PLSA;

(b) Each prison to develop a leave roster (this is expressed in language of obligation);

(c) That the leave roster is to allocate leave evenly throughout the year;

(d) Prison officers being given an opportunity to nominate periods within the leave roster in (b); and

(e) If there are more prison officers than can be accommodated, who nominate for a leave block, the matter is to be decided by the employer in consultation with the prison officers directly affected.

59      There is an important qualification in cl 138.7, which states in the last paragraph, ‘subject to subclause 138.3’.  The issue of construction primarily arising in these proceedings, is the meaning of these words and whether cl 138.3 applies to both applying for a PLSA (in respect of those needing to apply), and additionally, the taking of purchased leave by both those who may elect and those who may apply for a PLSA.

60      Clause 138.3 refers to ‘priority access’ and ‘Access to this entitlement …’.  An ‘entitlement’, in its ordinary meaning, is ‘1. to give a rightful claim to anything … 2. regard as having as title to something’ (Shorter Oxford English Dictionary).   The Macquarie Dictionary defines an ‘entitlement’ as ‘that to which one is entitled, as part of a contract, will, employment arrangement, etc.’

61      The scheme for PLSAs involves both a detriment and a benefit.  The detriment is that the prison officer pays for additional leave by a deduction from their salary in return for the benefit of extra leave. The benefit can only be reasonably construed as the taking of additional leave that has been purchased.  One does not realise the benefit of paid recreation leave until it is taken.  In our view, the ‘entitlement’, as referred to in cl 138.3, as a matter of ordinary meaning, must be construed to include both the purchase of leave in the first instance by an officer, and the taking of the purchased leave subsequently. 

62      It would be odd to simply view the purchasing of a period of additional leave, without the benefit of actually taking it, as constituting ‘Access to this entitlement’.  It would be odd because the officer would have only incurred a detriment, without the corresponding benefit.  This is in terms of its ordinary meaning and also construing the words in their industrial sense, as a benefit derived from the terms an industrial instrument.  This is particularly so given that officers entering into a PLSA who are not able to take the purchased leave in any leave year are, under cl 138.10, to be reimbursed their salary. There would be no ‘entitlement’ realised in such cases. There would only be an accounting exercise, where a leave credit is purchased by an officer, which is then subsequently cancelled, along with a reimbursement of the officer’s salary.     

63      Therefore, the appellant’s argument, underpinning the submissions made as to the proper construction of cl 138, that the ‘operational requirements’ provision in cl 138.3 of the Agreement, has no effect on the taking of purchased leave, cannot be sustained. Accordingly, the appellant’s contention at first instance, that once a PLSA has been entered into, the employer is then obliged to grant the taking of leave so purchased, must be rejected.

64      For reasons expressed above, the construction of cl 138 advanced by the appellant is untenable and is inconsistent with the language used in cl 138, construed in the context of the Agreement when read as a whole. For the appellant’s construction of cl 138 to be the preferred construction, not only would the words ‘Access to this entitlement will be subject to … operational requirements’ in cl 138.3, have to be disregarded, but in practical terms, a prison would have to permit an officer to take the purchased leave in any leave year, regardless of the prevailing operational circumstances in a prison at any given time.

65      For example, in the case of a high prison muster, an acute staff shortage may place the good order, routine and management of a prison at risk under the Prisons Act. If the appellant’s contentions are correct, officers would still be entitled to proceed on purchased leave even if that would place the safety and security of a prison at risk.  We do not consider that construing cl 138 as advanced by the appellant in this context could have been the intention of reasonable persons in the position of the parties at the time the agreement was struck between them. 

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. All of this in our view, is consistent with a construction of cl 138 that enables the respondent to consider operational requirements, when making decisions as to whether additional purchased leave may be taken by officers at any given point in time.  To construe cl 138 as conferring a largely unfettered right for officers to take purchased leave, would be quite contrary to this scheme. There is nothing in cl 138.3, in relation to operational requirements, that would exclude such considerations. Whilst cl 138.7 provides that operational requirements ‘may include’ the factors there set out, this is not exclusive of other relevant considerations.

70      Given the above, it is strictly unnecessary to consider the history of cl 138 of the Agreement as contained in the respondent’s submissions.  However, to do so tends to support the conclusions we have reached in this matter.  The terms of the Department of Corrective Services Officers’ Enterprise Agreement 2007  contained at cl 27 – Purchased Leave – 50/52 or 49/52 Salary Arrangement, contained a similar clause to that in cl 138 of the Agreement.  Notably however, there were two significant differences.  First, at cl 27.1 an officer could elect to enter into a PLSA. There was no equivalent of cl 138.2 of the Agreement, requiring an officer with more than 12 weeks of accrued annual leave to apply to the employer to purchase leave.  This first appeared in the successor Department of Corrective Services Officers’ Enterprise Agreement 2010.

71      Second, in the 2010 Agreement, but not the 2007 Agreement, was the insertion of a new cl 27.4, in largely the same terms as cl 138.6 of the Agreement, to the effect that officers who have had two or more purchased leave periods not taken, may be refused additional leave.

72      Third, and importantly, there was no equivalent in the 2007 Agreement, of cl 138.3, dealing with operational requirements, as a condition of access to the entitlement. Again, this made its first appearance in cl 27.3 of the 2010 Agreement. Clause 27 of the 2010 Agreement was largely replicated in cl 138 of the Agreement.

73      In our view, this history of the industrial agreements shows a progressive tightening of access by officers to purchased leave.  This  is consistent with the conclusion that on its construction, cl 138 did not confer an unqualified right for officers to take purchased leave under cl 138 the Agreement.

74      Therefore in our opinion, this ground of appeal is not made out.

Ground 5

75      The essence of this ground of appeal is that the learned Industrial Magistrate ‘rewrote’ cl 138.7 of the Agreement when she held at [48] and [51] of her reasons that one officer can constitute over accommodation for leave blocks on the roster (see AB76).  It was submitted that the reference to ‘where more officers than can be accommodated nominate for a particular block …’ in cl 138.7, must mean that there is more than one officer applying for a particular leave block.  On the appellant’s submission, a reasonable person would not construe this provision as applying where only one officer could not be accommodated.  On the appellant’s contention, this constituted a re-writing of the terms of cl 138.7, and the learned Industrial Magistrate was in error in reaching this conclusion.

76      On the other hand, the respondent submitted that the learned Industrial Magistrate’s finding was open to her on a proper construction of cl 138.7.  Given her Honour’s conclusion that it was open for the respondent to determine that no officers were to be offered purchased leave blocks for the 2021-2022 leave year, then, on this basis, if just one officer nominated for a particular leave block, this would be more than could be accommodated.

77      We do not consider that the learned Industrial Magistrate’s conclusions as to this issue constitute a rewriting of cl 138.7 of the Agreement.  On the basis of the construction of cl 138 as a whole that we prefer, set out above in relation to ground 3, if in any given leave year no leave blocks are to be offered because of operational reasons, then any number of officers, including only one, would be more than could be accommodated by the employer.  The language of cl 138.7 does not specify the number of officers who may nominate for leave blocks and the linkage between the numbers of officers requesting leave blocks is whether any can be accommodated at all.  No error has been demonstrated in this respect and we are not persuaded that this ground is made out.

Ground 6

78      The substance of this ground of appeal is that the learned Industrial Magistrate made findings and reached conclusions that were arbitrary and unsupported by the evidence before the Court.  First, it was submitted that her Honour at [32]-[35] of her reasons (see AB74) concluded that overtime could not be used to cover purchased leave. It was submitted that this was contrary to other provisions of the Agreement, such as cl 21.7, to the effect that there are no restrictions on the use of overtime under the Agreement; that for the purposes of limitations on the use of overtime in cl 24, purchased leave is not one of those specified; and therefore accordingly, the learned Industrial Magistrate was in error in reaching these conclusions.

79      Second, to the extent that the learned Industrial Magistrate inferred that at Bandyup Prison there existed a shortage of officers, there was no evidentiary foundation for this.

80      Third, that her Honour concluded at [44] of her reasons, that prisons were under staffing pressure and therefore were not able to allow officers to take extra purchased annual leave, and this conclusion was reached without supporting evidence.  Also, in reference to Banksia Hill, it was contended that her Honour’s remarks in relation to this detention centre, were irrelevant as the Agreement does not extend to cover this facility.

81      Fourth, the appellant submitted that the learned Industrial Magistrate concluded at [49] of her reasons that her conclusions regarding occurrences at Casuarina Prison, supported the same conclusions being reached in relation to other prisons.  This was said to be without any evidentiary foundation.

82      Finally, the appellant contended that the inference drawn by the learned Industrial Magistrate at [51] of her reasons, that no additional purchased leave was offered because of staffing shortages, was not a conclusion open on the evidence.

83      The respondent contended that, as to the first part of this ground, cl 138.3 in relation to operational requirements expressly enables the respondent to consider cost implications of overtime. Also, the respondent submitted that cl 21.7, which deals with bans and limitations on overtime, is not relevant and does not apply to the respondent.

84      As to the other contentions of the appellant, the respondent submitted that the appellant’s case at first instance alleged that the respondent contravened the Agreement by failing to consult under cl 138.7 and, that the respondent did not grant access to purchased leave, when there was an absolute obligation to do so under cl 138.  The respondent contended that it was not part of the appellant’s case at first instance, that the respondent had any discretion to decline officers’ requests to take purchased leave. Therefore, to the extent that the learned Industrial Magistrate dealt with these matters and reached conclusions in her reasons, they were not necessary as a part of her Honour’s reasons in dismissing the claim, and thus, can provide no foundation for an appeal ground.

85      The conclusions of the learned Industrial Magistrate at [32] to [35] of her reasons were based on the evidence before the Court in the form of a Bundle of Agreed Documents, (see AB104-107).  Document 3 of the Bundle was an email from a Mr Newell, the Business Manager at Bandyup Prison, to prison officers, dated 16 July 2021.  In it, Mr Newell informed the officers that the prison had been told by the ‘Department’ (which was assumed to be the Department of Justice), that it could not use overtime to cover for officers who went on purchased leave.  Accordingly, no purchased leave could be ‘booked until there is sufficient staff cover the staff taking purchased leave’.  The learned Industrial Magistrate then concluded that it was inferred, that if the prison let officers go on purchased leave, overtime would have to be used to cover it contrary to the direction of the Department.  Her Honour, in reference to these matters, did not, and was not invited to consider, other provisions of the Agreement as to overtime.  She simply referred to the uncontroverted evidence that the Department had issued a direction that overtime was not to be used.  It was from this evidence, and further evidence in Mr Newell’s email as to staff that she concluded there was a staff shortage.  That was the clear effect of Mr Newell’s communication.  There was nothing arbitrary about that conclusion and it was supported by the evidence.

86      In any event, cl 21.7 of the Agreement, raised by the appellant on the appeal, but not raised at first instance, prohibits the appellant or an officer from being a party to or involved in a ban on overtime.  That is not a matter relevant to the issues before the Court.

87      As to cl 24 of the Agreement, whilst this clause deals with circumstances in which overtime is not available to officers, and again was not a matter raised at first instance, it has no bearing on the ‘operational requirements’ that may be considered by the employer, for the purposes of cl 138.3. Simply because overtime to cover for purchased leave was not proscribed in cl 24.1 of the Agreement, does not mean that the respondent could not have regard to the cost of overtime as a ‘cost implication’, under cl 138.3(b) of the Agreement.

88      As to the other sub-grounds in this ground, we agree with the respondent’s submissions that the relevant passages of the learned Industrial Magistrate’s reasons, relied on by the appellant, were not essential to her Honour concluding that there had been no contravention of cl 138 of the Agreement.  It was not contended by the appellant at first instance, and it was not part of the appellant’s claim before the Court, that the respondent had, under cl 138 of the Agreement, for those officers entitled to elect to enter a PLSA a residual discretion to decline the taking of purchased leave, because of matters referred to in cl 138.3.  That was not put in issue before the Court.  On the contrary, the appellant’s case was that no such discretion existed, and the respondent was obliged to grant purchased leave to these officers. Therefore, the impugned passages of her Honour’s reasons were not essential to the Court’s decision to dismiss the appellant’s claim and therefore provide no basis to seek to set it aside.

Conclusion

89      We would dismiss the appeal.