Appeal against decisionS of the Industrial Magistrate in matter number M 22/2022 given on 17 JULY 2023 and 6 November 2023

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2024 WAIRC 00758

DELIVERED : TUESDAY, 13 AUGUST 2024

FILE NO. : FBA 8 OF 2023

Appellant

AND

Western Australian Prison Officers' Union of Workers

Respondent

ON APPEAL FROM:

Jurisdiction : INDUSTRIAL MAGISTRATES COURT

Coram : INDUSTRIAL MAGISTRATE T KUCERA

Citation : [2023] WAIRC 00384; [2023] WAIRC 00867

File No : M 22 OF 2022

Catchwords : Industrial Law (WA) – Department of Justice Prison Officers’ Industrial Agreement 2020 – Entitlement to personal leave for prison officers – Alleged contravention of cl 71 of the Agreement in relation to sick leave claim – Meaning of clause – Principles of interpretation applied – Approach to the appeal – Whether the deferential standard or the correctness standard should apply – Correctness standard applies – Full Bench to decide for itself the correct interpretation of the Agreement – Appeal upheld – Decisions of the Industrial Magistrate quashed

Legislation : Industrial Relations Act 1979 (WA) s 83

Minimum Conditions of Employment Act 1993 (WA)

Oaths, Affidavits and Statutory Declaration Act 2005 (WA) s 11; s 12

Result : Appeal upheld and decisions quashed

Representation:

Counsel:

Appellant : Mr J Carroll of counsel

Respondent : Mr D Stojanoski of counsel and with him Mr A Ceklic of counsel

Solicitors:

Appellant : State Solicitor’s Office of Western Australia

Respondent : Slater and Gordon

Case(s) referred to in reasons:

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

Australian Building and Construction Commission v Pattinson [2022] HCA 13; (2022) 274 CLR 45

Callan v Smith [2021] WAIRC 00162; (2021) 101 WAIG 1155

Holland v Jones (1917) 23 CLR 149 per Isaacs J at 153

House v The King [1936] HCA 40; (1936) 55 CLR 499

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

University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481

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

Western Australian Prison Officers’ Union of Workers v Minister for Corrective Services [2023] WAIRC 00867; (2023) 103 WAIG 1878

Reasons for Decision

FULL BENCH:

Background

1         Under the Department of Justice Prison Officers’ Industrial Agreement 2020 under Part E, there are clauses at cls 70-73 that deal with personal leave for prison officers.  The entitlement to personal leave is prescribed by cl 70.  How personal leave is accessed, is prescribed by cl 71.  The process for applying for personal leave, is set out in cl 73.  For present purposes, cls 71 and 73 are relevant and they provide as follows:

71. Accessing Personal Leave

71.1 Reasonable and legitimate requests for personal leave will be approved subject to the Officer having accrued personal leave available. The Employer may allow an Officer who is unable to work to take personal leave for the following reasons:

(a) Illness/injury leave - if the Officer is unable to work because the Officer is ill or injured.

(b) Carer's leave - if the Officer is unable to work because the Officer is providing care or support to a member of the Officer's family who requires care or support because of an illness or injury to the member; or an unexpected emergency affecting the member. ...

(c) Unanticipated matters of a compassionate or pressing nature - If the Officer is unable to work because the Officer must attend to unanticipated matters of a compassionate or pressing nature which have arisen without notice and require immediate attention.

(d) Planned personal leave - If the Officer is unable to work because the Officer must attend to planned matters where arrangements cannot be organised outside of normal working hours or be accommodated by the utilisation of flexible working hours or other leave.

…

71.3 Personal leave will not be approved where an Officer is absent from work because of personal illness/injury directly caused by their misconduct.

…

73. Application for Personal Leave

73.1 An Officer will complete and lodge an application for personal leave in the manner required. The application shall clearly identify the type of personal leave requested and must be submitted during the Officer's first shift on their return to work from Personal Leave. The Officer's pay will be adjusted accordingly if the application for personal leave is not lodged within this period.

…

73.3 An application for personal leave exceeding two consecutive shifts will be supported by evidence to the satisfaction of the Superintendent.

73.4 Subject to subclause 73.3, the amount of personal leave granted without the production of evidence to satisfy the Superintendent will not exceed five shifts in any calendar year.

73.5 The minimum evidentiary requirement to satisfy the Superintendent is:

(a) Illness/injury Leave - subject to subclause 73.3 and 73.4:

(i) a medical certificate from a certified medical practitioner indicating the Officer was or is unfit for work. Where the Officer is unable to obtain a medical certificate, a signed statement as per the relevant Department template will be required as an alternate.

(b) Nothing in this subclause prevents inquiries and recommendations being made by the Employer under clause 74 - Absenteeism Management and clause 75 - Suspected Misuse of Personal Leave Provisions

(c) Carer's leave - a signed statement as per the relevant Department template outlining the name of the person requiring care, the Officer's relationship to that person, the reasons for taking leave, and the estimated period of absence.

(d) Unanticipated matters of a compassionate or pressing nature - a signed statement as per the relevant Department template outlining the nature of the unanticipated occurrence and stipulating the relationship of the Officer to that situation.

(e) Planned personal leave - a signed statement as per the relevant Department template outlining the nature of the planned matter, and justifying the requirement for the Officer to take personal leave as a result.

73.6 Notwithstanding subclause 73.5, it is at the discretion of the Superintendent as to whether the evidence provided by an Officer is satisfactory, and the Superintendent may require additional evidence.

2         A dispute arose between the respondent and the appellant in relation to a member of the respondent, Mr Paterson.  Mr Paterson is a prison officer and is a member of the respondent union.  Between 1 and 3 October 2021, Mr Paterson was absent from work as he was unwell.  On 4 and 5 October 2021, Mr Paterson had rostered days off. On the following three days they being 6 to 8 October 2021, Mr Paterson took personal leave to care for his daughter who was also unwell.  The two following days being 9 and 10 October 2021, were Mr Paterson’s further rostered days off.

3         Mr Paterson returned to work on 11 October 2021.  As is required under the Agreement, Mr Paterson lodged two claims for personal leave.  In relation to the period 1 to 3 October 2021, Mr Paterson claimed sick leave.  In respect of the period 6 to 8 October 2021, Mr Paterson claimed carer’s leave.  Both forms of leave are able to be taken as personal leave under the Agreement. For the purposes of these reasons, we will refer to Mr Paterson’s claim for personal leave on the grounds of illness, as sick leave.

4         Both claims made by Mr Paterson were rejected by the Department of Justice.  In relation to his claim for sick leave, Mr Paterson did not, because he maintained he was unable to do so, provide a medical certificate to the Department.  Instead, a statutory declaration was provided.  The same evidence was provided in relation to Mr Paterson’s claim for carer’s leave.  The respondent challenged the Department’s refusal to grant Mr Paterson paid leave under the disputes procedure of the Agreement.  As a result, Mr Paterson’s claim for carer’s leave was allowed, but his claim for sick leave was still refused.

5         The respondent, on Mr Paterson’s behalf, commenced proceedings under s 83 of the Industrial Relations Act 1979 (WA) alleging that the Department failed to comply with cl 71.1 of the Agreement in not granting Mr Paterson payment for sick leave.  Additionally, the respondent contended that the Department also failed to comply with relevant provisions of the Minimum Conditions of Employment Act 1993 (WA) in relation to the granting of personal leave.

6         The respondent claimed that the relevant Superintendent and others, who dealt with Mr Paterson’s sick leave claim, failed to comply with cl 71.1 of the Agreement, because they did not accept the statutory declaration that Mr Paterson provided, in support of his sick leave claim, as an alternative to the provision of a medical certificate.

7         On behalf of the appellant, it was contended at first instance that the Department had not contravened the Agreement. Furthermore, it was contended that the relevant provisions of the MCE Act had no application to Mr Paterson’s circumstances, because the terms of the Agreement in relation to personal leave, were more beneficial than the relevant provisions of the MCE Act.  In relation to sick leave, it was the appellant’s case at first instance that the requirement to provide a medical certificate was a minimum requirement, and on the material before the Department, Mr Paterson failed to establish that he was unable to obtain one. Thus, it was contended that, in the circumstances before the Superintendent, the refusal of Mr Paterson’s claim for sick leave was reasonable.

The Court’s decision

8         The court determined that the alleged contravention of cl 71 of the Agreement had been made out:  Western Australian Prison Officers’ Union of Workers v Minister for Corrective Services [2023] WAIRC 00384; (2023) 103 WAIG 1454.  As to the respondent’s claim that the terms of the Agreement in relation to personal leave were less favourable than the relevant provisions of the MCE Act, after analysing both, his Honour rejected this proposition.  In the absence of a cross-appeal, it is unnecessary to consider this issue any further.

9         Both Mr Paterson, the prison officer concerned, and the Superintendent of Woorooloo Prison, Superintendent Sinclair, gave evidence.  Relevantly, as to Mr Paterson’s evidence, his Honour found:

(a) On or around 25 September 2021, Mr Paterson became unwell, with symptoms of a headache and vomiting. He remained unwell until 29 September 2021;

(b) Towards the end of the day at 4:57pm on 29 September 2021, Mr Paterson contacted his local medical practice, the Swan Medical Centre, to make an appointment for that day.  None of the 16 doctors in the practice could see him until 6 October 2021;

(c) Mr Paterson tried again on the morning of 30 September 2021 to get an appointment with his treating doctor, but he was on leave and none of the other doctors could see him until 5 October 2021.  Mr Paterson did not make an appointment as he regarded it as too far away and ‘he could get emergency medical assistance if his illness became worse or by this date, he would have recovered’ (reasons at first instance [34] AB224);

(d) Mr Paterson made contact with the Officer In Charge at Woorooloo Prison to advise that he would not be at work on 1 October 2021 because he was ill.  He also advised to the same effect for his absences on 2 and 3 October 2021;

(e) On 5 October 2021 Mr Paterson contacted the prison to advise that his daughter was unwell and that he would take carer’s leave for 6, 7 and 8 October 2021;

(f) On Mr Paterson’s return to work on 11 October 2021, he provided two statutory declarations, one each for his claim for sick leave and for carer’s leave.  Superintendent Sinclair refused both of Mr Paterson’s personal leave claims; and

(g) Following a dispute resolution procedure under the Agreement, Mr Paterson’s carer’s leave application was granted, but his sick leave application remained refused.

10      As to Superintendent Sinclair’s evidence his Honour found:

(a) When prison officers take personal leave they ‘book off’ and are absent from work and it is not until they return to work that they make a claim for leave in the appropriate form;

(b) In the case of Mr Paterson’s personal leave applications, Superintendent Sinclair was not satisfied that Mr Paterson had complied with cls 73.5(a)(i) and 73.5(c) of the Agreement. Given the length of Mr Paterson’s absence, Superintendent Sinclair considered that Mr Paterson did not provide a reasonable explanation for not providing a medical certificate;

(c) When considering applications for leave, Superintendent Sinclair checks whether a pattern of applications for leave in proximity to school holidays, public holidays or rostered days off is evident.  Given Mr Paterson’s absences took place over the school holiday period, Superintendent Sinclair considered it reasonable for her to request a medical certificate; and

(d) In making her decision to refuse Mr Paterson’s request for sick leave, Superintendent Sinclair had regard to the ‘Superintendent’s Guidance Note No 4 – Personal leave’, said to be aligned with the terms of the Agreement in relation to personal leave.

11      In light of his Honour’s interpretation of the relevant provisions of the Agreement, the submissions made by the parties and the evidence, his Honour found and concluded:

(a) That cl 73 of the Agreement as a whole provides a Superintendent with flexibility in relation to claims for personal leave;

(b) That under cl 73.5, the minimum evidentiary requirement for sick leave is a medical certificate and in this context, this means the ‘least’ evidence to be provided and for a reasonable person to be ‘satisfied’ means they must be ‘convinced’ and it must ‘answer sufficiently’;

(c) To construe the Agreement such that if the employer does not accept an officer’s explanation for a failure to provide a medical certificate, then a signed statement or statutory declaration will not suffice, is an overly restrictive and pedantic approach to the interpretation of cl 73 of the Agreement and the Superintendent has a much broader discretion;

(d) That Superintendent Sinclair made a number of errors in her decision to refuse Mr Paterson’s sick leave application and her refusal was unreasonable;

(e) That in all of the circumstances Mr Paterson took reasonable steps to obtain a medical certificate over the period 30 September to 2 October 2021 with the 16 doctors at the medical practice.  Given Mr Paterson’s prior medical history, and the impact of the COVID-19 pandemic, it was reasonable for Mr Paterson to focus his efforts on getting an appointment at the Swan Medical Centre;

(f) On the basis of his Honour’s conclusion at (e) above, the provision of a detailed statutory declaration satisfied the minimum evidentiary requirement of cl 73.5(a)(i) of the Agreement;

(g) That there was no evidence that Mr Paterson was seeking to take sick leave in order to take time off over the school holiday period, such that his claim was disingenuous or was made for an improper purpose. There was nothing before Superintendent Sinclair to suggest that Mr Paterson’s request was not legitimate;

(h) In terms of evidentiary value, a statutory declaration carried considerable weight and more than the Department of Justice’s requirement for a statement;

(i) That given the period of the absence on sick leave for three days, the content of the statutory declaration deposing to Mr Paterson’s condition, and the fact that Mr Paterson’s wife, who witnessed the statutory declaration, is a nurse, gave weight to its content;

(j) The content of the SGN4 Guidance Note led Superintendent Sinclair into error and it is the Agreement and not the Guidance Note, that is to be construed; and

(k) On the basis of the foregoing, the appellant contravened the Agreement in refusing to grant Mr Paterson paid sick leave for the period 1 to 3 October 2021.

12      A separate penalty hearing took place and his Honour published reasons for decision on 6 November 2023: Western Australian Prison Officers’ Union of Workers v Minister for Corrective Services [2023] WAIRC 00867; (2023) 103 WAIG 1878 (see AB278-287).  Having regard to the circumstances of the contravention, and applying the relevant criteria for the imposition of a penalty under s 83 of the Act, as set out in Callan v Smith [2021] WAIRC 00162; (2021) 101 WAIG 1155 and Australian Building and Construction Commission v Pattinson [2022] HCA 13; (2022) 274 CLR 450 the learned Industrial Magistrate imposed a caution on the appellant.  The caution imposed was in the following terms (see AB288):

It is hereby ordered that:

...

2. In respect of the proved contravention of clause 71.1 of the Department of Justice Prison Officers’ Industrial Agreement 2020, the respondent is cautioned from engaging in any further contraventions of any industrial instruments to which it is a party.

The appeal

13      The grounds of appeal are as follows:

A. Grounds relating to finding of contravention

The Industrial Magistrate erred in issuing a caution because he erred in finding a contravention was established on the following grounds:

1. In considering whether the Mr Paterson had been ‘unable to obtain a medical certificate’ within the meaning of clause 73.5(a)(i) of the Agreement, the Industrial Magistrate erred in law by asking the wrong question by conflating Mr Paterson's efforts to seek a medical appointment for diagnosis and treatment with the steps that might reasonably be taken by an employee in contemporary society when seeking an appointment for the purposes of obtaining a medical certificate to establish an entitlement to paid sick leave.

2. In the alternative to ground 1, if at [149] the Industrial Magistrate did not find that Mr Paterson was ‘unable to obtain a medical certificate’ within the meaning of clause 73.5(a)(i), the Industrial Magistrate erred in law in finding at [149] that the statutory declaration met the minimum evidentiary requirement under clause 73.5(a)(i) of the Agreement in circumstances where, on the proper construction of clause 73.5(a)(i) of the Agreement, a statutory declaration (or signed statement) can only meet the minimum evidentiary requirement under that clause if the employee is ‘unable to obtain a medical certificate’.

3. In finding the claim proven, the Industrial Magistrate erred in law in finding, at [126] – [129], that clause 73.6 of the Agreement provided a Superintendent with a discretion to accept evidence to satisfy them of the requirement even where such evidence does not meet the ‘minimum evidentiary requirement’ provided in clause 73.5, whereas on the proper construction of 73.6 of the Agreement, the Superintendent has discretion to require additional evidence, over and above that of the ‘minimum evidentiary requirements’, and does not have discretion to accept evidence which is less than the ‘minimum evidentiary requirements’.

4. In finding the claim proven, the Industrial Magistrate made an error of fact in finding at [147] that ‘the evidence establishes that [Mr Paterson] tried daily in the period 30 September to 2 October to obtain an appointment’ in circumstances where the evidence only established that Mr Paterson tried to make an appointment on 29 and 30 September.

5. In holding at [151] that Mr Paterson's request to take personal leave should have been viewed as reasonable and legitimate, the Industrial Magistrate erred by taking into account irrelevant matters, namely:

(a) At [156] and [161], the Industrial Magistrate considered it relevant that Ms Morris [sic] was a witness to the statutory declaration because she is a registered nurse and someone who was in a position to verify the matters described in Mr Paterson's statutory declaration, however, that matter was irrelevant because there was no evidence to establish Ms Morris [sic] in witnessing the statutory declaration was declaring that she witnessed those matters nor that she was herself declaring to the truth of Mr Paterson's declaration.

(b) At [170], the Industrial Magistrate considered that the Superintendent failed to have proper regard to the ‘well known … demands … placed on the health system and [that] measures were adopted discouraging people with potential COVID symptoms from attending medical practices’ in circumstances where it was never suggested that a reason for Mr Paterson not obtaining a medical certificate was because of him being discouraged from attending a medical practice due to potential COVID symptoms.

(c) At [171], the Industrial Magistrate considered relevant that Mr Paterson's illness coincided with a long weekend and that was a factor that needed to be considered, however, the Queen's Birthday public holiday was on 27 September 2021, and Mr Paterson sought to obtain an appointment with a general practitioner on 29 and 30 September 2021 and then sought paid personal leave for 1 to 3 October 2021. In those circumstances the public holiday was not relevant.

B. Grounds relating only to the caution issued

6. The terms of the caution issued by the Industrial Magistrate was manifestly unreasonable as there was no rational basis to:

(a) caution the appellant not to contravene any industrial instrument to which the appellant is a party in circumstances where only one industrial instrument was the subject of M 22 of 2022; and

(b) caution the appellant from engaging in any contravention without there being any connection within the caution to the nature of the contravention the subject of M 22 of 2022.

7. In the alternative to ground 6, the Industrial Magistrate gave inadequate reasons to explain why the caution which he issued:

(a) cautioned the appellant not to contravene any industrial instrument to which the appellant is a party rather than only the industrial instrument the subject of 22 of 2022; and

(b) cautioned the appellant not to engage in any contravention without there being any connection within the caution to the nature of the contravention the subject of M 22 of 2022.

Approach to the appeal

14      The learned Industrial Magistrate concluded that Superintendent Sinclair’s rejection of Mr Paterson’s claim for sick leave was unreasonable, in light of the terms of the Agreement.  This conclusion begs the question as to the approach the Full Bench should adopt to the determination of the present appeal and whether the deferential standard or the correctness standard should apply.  It seemed to be suggested on the respondent’s written submissions that the Full Bench should only interfere if it could be demonstrated that the learned Industrial Magistrate erred in the exercise of his discretion, such that it miscarried, citing the well-known decision of the High Court in House v The King [1936] HCA 40; (1936) 55 CLR 499, in support.

15      On the other hand, the appellant, in reliance on the decision of the Court of Appeal in Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158, contended that in circumstances where the exercise of discretion as to whether evidence produced by a prison officer to support a claim for personal leave is satisfactory, and therefore ‘reasonable’ for the purposes of cl 71.1 of the Agreement, does not involve the exercise of discretion at large.  It was common ground that the obligation imposed on a Superintendent acting under cls 71 and 73 of the Agreement is to act reasonably, in the sense that the exercise of the Superintendent’s discretion should not be arbitrary or capricious.

16      In Ammon, the matter at first instance was a claim based on private nuisance, with the need to establish that the use or enjoyment of the plaintiff’s land or rights conferred under it, were interfered with substantially and unreasonably: at [119].  On the appeal, an issue arose as to whether the approach in House v The King should apply.  The Court of Appeal referred to the decision of Gageler J (as his Honour then was) in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 at [35]‑[50], in particular at [48]‑[49] where his Honour observed:

48. The course of High Court authority since Warren v Coombes has accordingly proceeded on a consistent understanding of how the line of demarcation is to be drawn between those of a primary judge's conclusions which attract the correctness standard of appellate review reaffirmed in that case and those which attract the deferential standard applicable to appellate review of an exercise of judicial discretion.  Without excluding the potential for other considerations to affect the standard of appellate review in a particular category of case, the understanding provides a principled basis for making at least the principal distinction. 

49. The line is not drawn by reference to whether the primary judge's process of reasoning to reach a conclusion can be characterised as evaluative or is on a topic on which judicial minds might reasonably differ.  The line is drawn by reference to whether the legal criterion applied or purportedly applied by the primary judge to reach the conclusion demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies.  The resultant line is not bright; but it is tolerably clear and workable. 

17      Returning to the issue at hand, the Court of Appeal went on to conclude on this point as follows at [128]‑[129]:

128. Colonial's submissions that the deferential standard is applicable in the present appeal should be rejected.  As Gageler J made clear in SZVFW, and as the High Court has recently emphasised, the deferential standard does not apply whenever minds may reasonably differ on a question or the question may be characterised as evaluative.  Although the question of whether there has been a substantial and unreasonable interference with the beneficial use of Mr Ammon's land is evaluative in nature, it involves the application of a legal standard, in respect of which there is only one uniquely correct outcome.  The character of the finding is more like a finding of negligence, or an Anshun estoppel (the touchstone of which is the question of unreasonableness), rather than the exercise of a judicial discretion. 

129. Adopting Gageler J's nomenclature, the correctness standard rather than the deferential standard is to be applied to an appellate review of whether, on primary facts agreed or found by the trial court, there is a substantial and unreasonable interference with the beneficial use of premises so as to constitute an actionable nuisance.  That is consistent with the approach taken by this court in Marsh and Southern Properties.

18      The appellant submitted that analogously with Ammon, in this case, the decision of his Honour as to whether there was a contravention of cl 71.1 of the Agreement, involved, on the proper interpretation of the Agreement, only one correct answer.  His Honour’s discretion was not exercised at large, such that there were a range of possible outcomes.

19      We prefer the appellant’s approach to this issue.  The decision of the learned Industrial Magistrate, whilst involving an element of discretion in his assessment of the reasonableness of Mr Paterson’s claim for sick leave, made in the context of a legal standard, that being the correct construction of the relevant provisions of the Agreement, leads to only one correct answer.  Accordingly, the correctness standard applies to the determination of the appeal.  Insofar as the decision of the learned Industrial Magistrate turned on his interpretation of the Agreement, it is for the Full Bench to decide for itself, the correct interpretation.

20      To the extent that the appellant contended that the learned Industrial Magistrate erred in his interpretation of the Agreement, the approach to be adopted is well settled.  Recently in Western Australian Prison Officers’ Union of Workers v Minister for Corrective Services [2024] WAIRC 00139; (2024) 104 WAIG 322, the Full Bench observed at [34]:

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].

21      We adopt and apply that approach for present purposes.

22      Finally, in the respondent’s written submissions, it was contended that those parts of the appellant’s written submissions in Part II subparts B and C, dealing with the principles of interpretation of industrial agreements and the proper construction of cl 71 and 73 of the Agreement, were not part of the appellant’s appeal grounds and were not issues raised at first instance.  As to the latter point, it was therefore submitted that these matters were fresh points and the Full Bench should not entertain them on appeal, in reliance on University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481.  Whilst these matters were not pressed in oral submissions before the Full Bench, the respondent’s written submissions were not abandoned and it is accordingly necessary for the Full Bench to consider them.

23      For the following reasons, these contentions have no merit.  In the respondent’s written submissions at first instance, the meaning of cl 73.5 of the Agreement was put in issue (see [51] at AB131). The appellant in his submissions at first instance, also put the meaning of provisions of the Agreement in issue (see [7] – [9]; [11]; and [13] at AB138).  The appeal grounds themselves directly advert to the meaning and effect of cl 73 of the Agreement in grounds 1, 2 and 3.  Additionally, his Honour clearly understood the centrality of the interpretation of the Agreement for the purposes of making his decision (see [98] – [103] reasons at first instance at AB230).

Consideration

Ground 1

24      As to this ground, the respondent submitted that the assertion of the appellant that the learned Industrial Magistrate’s findings at [148] and [149] of his reasons, in light of the undisputed evidence that Mr Paterson was ill, were reasonably open.  Applying the terms of cl 73.5(a)(i) of the Agreement, Mr Paterson tried ‘very hard indeed’ to obtain a medical certificate and was not able to obtain an appointment with either his usual doctor or any of the other 16 doctors at his usual medical centre until 5 October 2021 (see respondent’s written submissions at [13] to [14]).

25      Under the heading ‘Consideration – Did the Department Breach Clause 71.1 of the Agreement?’ the learned Industrial Magistrate’s reasons at [146] to [149] (see AB234-235) were as follows:

146 In relation to this, Supt Sinclair made a number of errors in the exercise of her discretion which rendered the decision to refuse Mr Paterson's personal (sick) leave application unreasonable.

147 I do not accept that Mr Paterson did not make a reasonable attempt to obtain a medical appointment. The evidence establishes he tried daily in the period 30 September to 2 October to obtain an appointment at a practice where at least 16 doctors worked.

148 In the context of the COVID pandemic and his particular medical history, it was reasonable in all of the circumstances, for him to have focused his efforts on obtaining an appointment at his usual practice, the Swan Medical Centre. If he had made a lesser effort, I may have taken a different view but the evidence establishes that despite his best efforts, he was not able to get an appointment to obtain a medical certificate.

149 Having concluded Mr Paterson had a reasonable explanation as to why he could not obtain a medical certificate, it is my view the provision of a detailed statutory declaration met the minimum evidentiary requirement under cl 73.5(a)(i) of the Agreement.

26      The respondent submitted that Mr Paterson fell ill on 25 September 2021 and remained ill over the period 26-29 September 2021.  During this period, based on the learned Industrial Magistrate’s findings, the respondent submitted that Mr Paterson, in not being able to get an appointment until 5 October 2021, after his scheduled return to work on 1 October 2021, meant he was ‘unable’ to obtain a medical certificate to support his sick leave claim, for the purposes of cl 73.5(a)(i) of the Agreement.  Despite the appellant’s contentions to the contrary, the respondent submitted that Mr Paterson was not seeking an appointment for the purposes of the diagnosis of his medical condition.  It was submitted that even if this was so, this was related to his illness over the period 25-29 September 2021 and formed part of his legitimate reasons for being on sick leave.

27      The respondent contended that the learned Industrial Magistrate was correct to conclude that Mr Paterson had made a reasonable attempt to obtain a medical certificate, and that in light of there being no dispute that Mr Paterson was in fact ill, he was accordingly ‘unable’ to provide a medical certificate for the purposes of cl 73.5(a)(i) and the provision of a statutory declaration instead, satisfied the ‘minimum evidentiary requirement’ for the purposes of cl 73.5(c)(i).

28      It is necessary in considering this ground of appeal, to construe the relevant provisions of the Agreement, in cls 71 and 73, in the context of cls 71 to 73 read as a whole.  Whilst it does not appear to have been considered a first instance, the starting point for the purposes of interpretation is cl 71.1.  Clause 71.1 is prefaced by the words ‘Reasonable and legitimate requests for personal leave will be approved …’.  The appellant posited several different possibilities as to how the word ‘legitimate’ in this context, should be construed.  It was submitted that one meaning from the Macquarie Dictionary is ‘genuine; not spurious’.  Alternatively, other possible meanings include ‘according to law; lawful’ and ‘in accordance with established rules, principles or standards’.

29      Consistent with the principle that language used in instruments is to be construed in context and in accordance with the text as a whole, we prefer the construction of ‘Reasonable and legitimate’, as being referrable to established rules, principles or standards.  That is, cl 71 to 73 should be read together as part of the scheme concerning personal leave.  To construe these words as meaning a request for personal leave must only be ‘reasonable and genuine’ for example, would render the requirements of cl 73 of the Agreement concerning the minimum evidentiary requirements in cl 73(5), as otiose.

30      As was recognised by the learned Industrial Magistrate, given Mr Paterson’s circumstances and the length of personal leave requested, cl 73.3 applied in this case, which required Superintendent Sinclair to be satisfied with the evidence furnished by Mr Paterson in support of his application for sick leave.  It is clear that cl 73.3 is to be read together with cl 73.5, which informs and guides a Superintendent as to how the requirement in cl 73.3 is to be met.  That is, the discretion of a Superintendent to be satisfied is not at large.  Clause 73.5 is prefaced with the words ‘The minimum evidentiary requirements to satisfy the Superintendent …’.  This is a clear reference to the satisfaction requirement in cl 73.3.  That minimum evidentiary requirement is a medical certificate unless an officer is unable to obtain one.

31      Clause 73.5(a) is ‘subject to subclause 73.3 and 73.4’.  This is because these provisions of cl 73 specify in which circumstances the minimum evidentiary requirement will apply.  A lesser standard applies in cases of applications for personal leave for two consecutive shifts or less at one time, or in cases where an officer has made personal leave applications that have not exceeded a total of five shifts in any year.  In these circumstances, an application for personal leave without the need to produce evidence to satisfy a Superintendent, must be taken to be ‘reasonable and legitimate’ for the purposes of cl 71.1 of the Agreement.

32      The scheme of cl 73 then includes cl 73.6.  This provides that notwithstanding the terms of cl 73.5, a Superintendent has discretion as to whether evidence provided in support of a claim by an officer is satisfactory.  Second, a Superintendent may require an officer to provide additional evidence.

33      As a matter of construction, for the purposes of cl 73.5, ‘minimum’ in its ordinary sense, means ‘2. The least amount obtainable, allowable, usual, etcetera’ (Shorter Oxford Dictionary).  This qualifies how cl 73.6 is to apply, such that in the case of a claim for sick leave, the least evidence that may satisfy a Superintendent is a medical certificate.  However, in appropriate circumstances, a Superintendent may require further evidence, over and above the minimum requirement of a medical certificate.  Read together, in the case of a claim for sick leave to which cls 73.5 and 73.6 apply, in the usual course, a Superintendent cannot accept less than a medical certificate, and may require more evidence.  This is subject to the second sentence in cl 73(5)(a)(i), dealing with the inability of an officer to provide a medical certificate, to which we now turn.

34      The qualification to the minimum evidentiary requirement of a medical certificate to satisfy a Superintendent, is if the officer is ‘unable’ to obtain a medical certificate. It is plain by cl 73.5(a)(i) that the medical certificate, in order to meet the minimum evidentiary requirements, must be from ‘a certified medical practitioner’.  The second requirement of the medical certificate is that it must indicate that the officer ‘was or is unfit for work’.  The only obligation on an officer imposed by cl 73.5(a)(i) is the attendance on a certified medical practitioner for the purposes of obtaining a medical certificate and no other purpose in required.

35      Under cl 73.5(a)(i) ‘unable’ should be given its ordinary meaning. In the Shorter Oxford Dictionary, ‘unable’ means ‘1. Not able to do something specified (chiefly of persons)… 2. Unequal to the task or need, incompetent, inefficient’.  It was accepted by the appellant in the course of argument that the test of whether an officer is ‘unable’ to obtain a medical certificate is to be determined on the basis of an objective approach, having regard to what may be reasonable in a given case, and in all the relevant circumstances.  That is, the test is not absolute.

36      It is also important to bear in mind that the proceedings at first instance were for the enforcement of the Agreement, under s 83 of the Act.  The burden rested on the respondent to make out its case on the evidence, that firstly Mr Paterson had an entitlement to sick leave under the Agreement and secondly, that the entitlement was denied to him by the Department, such as to constitute a contravention of the Agreement.

37      In his evidence at first instance, Mr Paterson said that he was unsure about the cause of his illness, whether it related to his previous injury, his recent COVID‑19 vaccination or something else (see [13]-[15] witness statement of Mr Paterson AB49).  He telephoned the Swan Medical Centre in Midland at 4:57 pm on 29 September 2021 because he had been unwell since 25 September. He could not get through and attempted an online appointment, but could not get one with any of the 16 doctors at the medical centre until 6 October 2021.  Because of this, he rang the Swan Medical Centre again early the next day on 30 September.  He still could not get an appointment with his regular doctor as he was on holidays.  None of the other doctors could give him an appointment until 5 October (see AB49).  Mr Paterson said he did not accept this offer of an appointment as it was too far away.  He also testified that at that time, he thought if his condition got any worse, he could seek emergency assistance at a hospital (see AB50).

38      Mr Paterson also testified that he had been treated by his regular doctor for some time, in particular for a head injury that he suffered at work in April 2019, and in relation to which, his doctor had been providing him treatment for about two years (see AB48). In his evidence in cross-examination, when asked by the appellant why he did not look beyond the Swan Medical Centre for an appointment, Mr Paterson testified that he had an extensive medical history, which his doctor is aware of, that he had ongoing medical issues and that he felt more comfortable going to his own doctor at his own surgery (see AB161).

39      This evidence was generally in line with Mr Paterson’s evidence in chief, but he also added that he received his COVID-19 vaccination from the same doctor that had been treating him, and the advice was to return to that surgery if there were any side effects (see AB53-54).  Mr Paterson did not say in his evidence that the reason he sought an appointment was to get a medical certificate to support a claim for sick leave.  On the contrary, the clear inference to be drawn from Mr Paterson’s testimony as a whole is that he contacted only the Swan Medical Centre because he was seeking a diagnosis and treatment for his condition, and that his own doctor, with knowledge of his medical history, could treat him more effectively.

40      Additionally, the fact that there were 16 doctors at the medical centre did not mean Mr Paterson made more effort in his attempt to make an appointment on each of the occasions he telephoned on 29 and 30 September 2021.  Whether there were two doctors or 16 doctors at the medical centre in our view, did not have any bearing on the lengths to which Mr Paterson went, on the evidence, to secure an appointment.  He did not make any attempt to secure an appointment at any other medical centre on the evidence.  There was no evidence that at the time, he was unable to do so.

41      Returning then to his Honour’s conclusions as set out above at [25].  In light of Mr Paterson’s evidence as to his preference to only seek an appointment at the Swan Medical Centre, for the reasons we have referred to above, which were accepted by his Honour in determining whether Mr Paterson was ‘unable’ to obtain a medical certificate, led his Honour into error.  It seems clear by his Honour’s reference to Mr Paterson’s medical history and the COVID pandemic at [148] of his reasons, that in considering Mr Paterson’s efforts in obtaining a medical certificate, he was influenced by Mr Paterson’s concerns for his health more generally.

42      The relevant focus for the purposes of obtaining a medical certificate under cl 73.5(a)(i) of the Agreement is solely to evidence an officer’s unfitness for work, at a time specified in the application for personal leave.  Respectfully, in our view, the learned Industrial Magistrate conflated the issue of the obtaining of an appointment for the sole purpose of obtaining proof of unfitness for work, with the matters of treatment for Mr Paterson for prior and ongoing medical issues.

43      Had his Honour simply focused on the efforts of Mr Paterson to obtain a medical certificate simpliciter, without the distraction of the reasonableness of Mr Paterson only trying for an appointment with his treating doctor and at his regular medical centre, then this would have required a conclusion to have been reached as to whether Mr Paterson was ‘unable’ to do so, for the purposes of cl 73.5(a)(i) of the Agreement.  Given that Mr Paterson made no attempt at all to seek an appointment at other than the Swan Medical Centre, this must be a relevant consideration in the circumstances to a conclusion that he was ‘unable’ to obtain an appointment. Had Mr Paterson made attempts to obtain an appointment at other medical centres as well, then this would, in our view, have significantly strengthened his case to put to Superintendent Sinclair that he took all reasonable steps to comply with the minimum requirement of cl 73.5(a)(i) of the Agreement, opening the gateway to the alternative of a signed statement in accordance with the Department template.

44      That Mr Paterson failed to do this, or to seek a telehealth appointment, was noted by Superintendent Sinclair in her evidence, when referring to the dispute resolution process that took place after she had refused to grant Mr Paterson his claim for sick leave (see AB101).  Superintendent Sinclair also referred to Mr Paterson providing medical certificates on previous occasions when he claimed sick leave and that his statutory declaration did not provide her with any explanation as to why he could not obtain a medical certificate on this occasion.

45      There are further difficulties for the respondent in establishing that Mr Paterson was unable to obtain a medical certificate, and whether the actions that he took, or did not take, where reasonable in all of the circumstances, to establish a contravention of the Agreement.  This relates to the timing of the relevant events, in the context of Mr Paterson’s efforts to seek an appointment directed to seeking a diagnosis and treatment for his illness rather than being solely directed to obtaining a medical certificate for the purposes of supporting his claim for sick leave under cl 73 of the Agreement.

46      As set out at [2] ‑ [3] above, Mr Paterson was absent from work on 1‑3 October 2021, being three days in respect of which he claimed sick leave.  Mr Paterson was not then rostered to work on 4 and 5 October 2021.  Over the next three days, from 6‑8 October 2021, Mr Paterson was rostered to work but he was absent on carer’s leave, for which he was ultimately paid.  The next two days, they being 9 and 10 October 2021, were Mr Paterson’s rostered days off.  He was next rostered on duty on 11 October 2021, on which day, in accordance with the Agreement, in cl 73.1, Mr Paterson was required to make his application for personal leave, which he did.  Notably, it does not seem from the terms of cl 73.1, that when an application for personal leave is made, on an officer’s return to duty, the evidence required under cl 73.3 in support to satisfy a Superintendent, needs to be supplied on the same day.  It seems the terms of the Agreement contemplate that this supporting evidence may be provided at a later time.

47      At the time Mr Paterson contacted the Swan Medical Centre on 29 and 30 September 2021, he did not need a medical certificate because he was not rostered to work until 1-3 October 2021.  Given the subsequent period of carers leave to care for his daughter, as noted, Mr Paterson’s next rostered shift, on which he returned to work, was 11 October 2021.  Mr Paterson’s evidence, accepted by the learned Industrial Magistrate, was that the next available appointment at the Swan Medical Centre was 5 October 2021, as a result of his contact on the morning of 30 September 2021.  Given at the time of the contact with the medical centre, Mr Paterson’s next rostered working days, beyond 3 October 2021, were on 6-8 October 2021 inclusive, there was no reason on the evidence, that Mr Paterson could not have taken the appointment for 5 October 2021, to obtain a medical certificate evidencing his period of illness. As it turned out, the days of 6-8 October 2021 inclusive, were days on which Mr Paterson did not work because he was on carers leave.

48      If Mr Paterson had obtained a medical certificate at an appointment offered to him for 5 October 2021, to support his claim for sick leave, this could have accompanied his application for personal leave submitted on his return to work on 11 October 2021.  This would plainly have been evidence that Superintendent Sinclair would have taken into account for the purposes of forming the level of satisfaction required, to grant the application for sick leave under the Agreement.  This is a further reason why Mr Paterson was not, on the evidence, reasonably unable to obtain a medical certificate for the purposes of cl 73.5(a)(i), to support his claim and to satisfy Superintendent Sinclair.

49      For the foregoing reasons, the learned Industrial Magistrate was in error in concluding that he did not accept that Mr Paterson did not make a reasonable attempt to obtain a medical certificate.  This ground of appeal is made out.

Grounds 2 and 3

50      Grounds 2 and 3 are to be read together and were advanced by the appellant in the alternative to ground 1, in the event that the Full Bench did not consider that ground 1 was made out.

51      Ground 2 asserts ambiguity in his Honour’s reasons as to whether the findings that he made at [148] that Mr Paterson was not ‘able to get an appointment to obtain a medical certificate’ and his conclusion at [149] that Mr Paterson ‘had a reasonable explanation as to why he could not obtain a medical certificate’, were not one and the same.

52      The appellant submitted that the differences in these two paragraphs of the learned Industrial Magistrate’s reasons may have resulted from infelicitous expression and led to ambiguity.  This was said because the findings may not necessarily lead to the same conclusion.  One may be able to offer a reasonable explanation for not being able to do something, which will not always mean taken objectively it was unable to be done.

53      It is only necessary to consider this ground on the appellant’s submissions, in the event that the Full Bench were to conclude that the learned Industrial Magistrate did not find Mr Paterson was unable to obtain a medical certificate.  We do not consider that taken as a whole, [147] - [149] of his Honour’s reasons can be read in this way.  Taken together, his Honour in those passages of his reasons must be taken to have concluded that Mr Paterson was ‘unable’ to obtain a medical certificate for the purposes of cl 73.5(a)(i) of the Agreement.  This is consistent with his Honour’s statement earlier in his reasons at [126], recognising that cl 73.5(a)(i) requires a medical certificate to be provided for an absence in excess of two shifts, unless an officer is unable to obtain one.  It is unnecessary to say anything further as to this ground.

54      Alternatively, had there not been a finding by the learned Industrial Magistrate that Mr Paterson was unable to obtain a medical certificate for the purposes of cl 73.5(a)(i) of the Agreement, but the statutory declaration (or a statement as per the Department’s template) was satisfactory evidence, this would constitute an error.  On the construction of cl 73 of the Agreement that we prefer, as set out at [28] - [35] above, it is only in circumstances where, in cases to which cl 73.5 applies, the minimum requirement of the production of a medical certificate under cl 73.5(a)(i) is unable to be met, that consideration can be given to the alternative of a statement.  A Superintendent does not have a general overriding discretion under cl 73.6, to waive the requirement for a medical certificate in circumstances in which it would be necessary to produce one.

55      Given that ground 3 is also dependent on his Honour not concluding that Mr Paterson was unable to obtain a medical certificate, it is also unnecessary to comment further on this ground.

Ground 4

56      As to this ground, the appellant referred to the uncontroverted evidence of Mr Paterson that he was unwell from 25 to 29 September 2021 and by 29 September 2021, he became concerned enough to contact the Swan Medical Centre.  This was by way of the telephone call at 4:57 pm.  Shortly after, he made an attempt to book an online appointment but the earliest available was 6 October 2021.

57      The next and final successful contact by Mr Paterson with the medical centre was on the following morning on 30 September 2021 when he telephoned the centre at 8:06 am (see AB49-50).  This was the only evidence of contact by Mr Paterson with the Swan Medical Centre.  At [147] of his reasons, as set out at [25] above, his Honour concluded at ‘The evidence establishes he tried daily in the period 30 September to 2 October 2021 to obtain an appointment at a practice where 16 doctors worked’.

58      The respondent accepts on its submissions that this was a factual error and that Mr Paterson only made attempts to make an appointment at the Swan Medical Centre on two occasions, they being on 29 and 30 September 2021.  However, the respondent contended this error of fact was immaterial to the learned Industrial Magistrate’s ultimate conclusion that Mr Paterson had been unable to obtain a medical certificate.  The respondent submitted that whether Mr Paterson tried over two or three days to get an appointment to see a doctor was of no consequence as it would have made no difference.  Whilst on the other hand the appellant submitted that this factual error was of significance because the only factual foundation for the conclusion that Mr Paterson made a reasonable attempt to obtain an appointment for a medical certificate, was his Honour’s finding that Mr Paterson tried to do so daily from 30 September to 2 October 2021.

59      The submission was that this finding was therefore central to his Honour’s conclusion that Mr Paterson was not able to obtain an appointment for a medical certificate, and is material.  Whilst the appellant contended that the learned Industrial Magistrate’s finding that Mr Paterson tried daily over 30 September to 2 October 2021 to obtain an appointment was the only factual foundation for his conclusion that Mr Paterson made a reasonable attempt, we do not consider this to be so.  The learned Industrial Magistrate also plainly was influenced by the fact that the Swan Medical Centre had 16 doctors practicing at it.  Whilst his Honour’s reference in [147] of his reasons to the fact that 16 doctors worked at the centre, was not explained any further, reading this passage as a part of his Honour’s reasons as a whole, it is open to infer, and we do infer, that his Honour placed some weight on this as part of his assessment of Mr Paterson’s efforts to get an appointment with a doctor in order to obtain a medical certificate.

60      We therefore do not consider that the days over which Mr Paterson attempted to make an appointment, whether they were two or three, were determinative, in terms of the factual findings his Honour made.  We are therefore not persuaded that such an error was so material to the learned Industrial Magistrate’s conclusions, as to warrant interference with them on appeal.  From the evidence, on the two days that Mr Paterson did make contact with the medical centre, on 29 and 30 September 2021, he was informed that no appointments were available until 5 or 6 October 2021.  It would therefore seem unlikely that a further attempt on the next day to obtain an appointment would have been successful.

61      We are therefore not persuaded this ground of appeal is made out.

Ground 5

62      The essence of this ground is that the learned Industrial Magistrate took into account irrelevant matters in reaching his conclusion that he reached at [151] of his reasons that Mr Paterson’s request to take personal leave was reasonable and legitimate.  The relevant passages of his Honour’s reasons for the purposes of this ground of appeal are [151]-[171] as a whole, but specifically [151], [156], [161], [170] and [171], which are as follows:

151 There is no evidence Mr Paterson was attempting to take personal leave just so he could have time off over the school holidays. Put another way, there was no evidence for the department to refuse his personal leave application on the grounds it was disingenuous or taken for an ulterior purpose. In the circumstances, his request to take personal leave ought to have been viewed as reasonable and legitimate.

…

156 I also consider the superintendent should have viewed the role of Ms Morris [sic] as a witness to his statutory declaration very differently. Rather than confining her inquiry as to whether Ms Morris [sic] was a person authorised to witness Mr Paterson's statutory declaration, there were other matters about this document Supt Sinclair ought to have turned her mind to when exercising her discretion.

…

161 Thirdly, although Ms Morris [sic] is not a medical practitioner, as a registered nurse, Ms Morris [sic] is a health professional, who is in a position to directly verify the matters described in Mr Paterson's statutory declaration.

…

170 It is well known that demands were placed on the health system and measures were adopted discouraging people with potential COVID symptoms from attending medical practices and workplaces when sick. It is my view the superintendent failed to have proper regard to these considerations.

171 Fourth, Mr Paterson lives if not just outside, but on the edge of the Perth metropolitan area. This, in addition to the timing of Mr Paterson's illness, which coincided with a long weekend and school holidays and in the midst of the pandemic, each of which adversely affected the availability of medical practitioners, although inconvenient, are factors the superintendent should have reasonably considered to Mr Paterson's benefit.

63      An issue arises as to whether [151] - [171] of his Honour’s reasons formed a part of his overall conclusion that the Department did breach cl 71.1 of the Agreement.  Whilst these paragraphs are under a separate heading entitled ‘Other Matters The Department Should Have Viewed Differently’ and ‘Guidance Note No 4’, taken collectively with his Honour’s reasons when read as a whole, we consider that these paragraphs deal with the manner of the exercise of Superintendent Sinclair’s discretion, in accordance with cl 73.6, and that the Superintendent’s exercise of that discretion was erroneous.  We therefore regard these conclusions reached by the learned Industrial Magistrate as being a part of his overall assessment as to whether there was a contravention of cl 71.1 of the Agreement.

64      As to subground (a) of this ground, his Honour’s conclusions at [156] and [161] of his reasons regarding the role of Mr Paterson’s wife Ms Morrice, in witnessing Mr Paterson’s statutory declaration was seen as significant by his Honour, because as a nurse, she could attest to its content.  As to this, the appellant submitted that as a witness to the statutory declaration, Ms Morrice did not attest to the truth of the content of it, and nor was there any evidence that she purported to do so when signing the statutory declaration as a witness.

65      The second point raised by the appellant in subground (b) relates to [170] of his Honour’s reasons, where he referred to the well-known demands placed on the health system by the COVID-19 pandemic, and measures adopted by medical practices to discourage people from attending them when displaying COVID-19 symptoms.  It was submitted by the appellant that there was no evidence to this effect before the court or Superintendent Sinclair as to these matters, and no suggestion on the respondent’s case that this was a reason for Mr Paterson not being able to obtain a medical certificate to support his sick leave claim.  It was further submitted that as to demands placed on the health system, by late 2021, the WA State border had been closed, with little transmission of COVID-19 in the State.

66      Insofar as reference was made to measures to discourage persons with COVID-19 symptoms from attending medical practices, the appellant contended that the health system did not abandon people displaying COVID-19 symptoms and well known measures were adopted, including telehealth, to accommodate this.  It was submitted that this latter factor counted against the respondent’s case at first instance, as there was no reason why Mr Paterson could not have sought a telehealth appointment at another medical practice, in order to obtain a medical certificate.  The appellant therefore submitted that to take into account these factors in assessing whether Superintendent Sinclair was wrong to reject Mr Paterson’s claim for sick leave, constituted an error by the learned Industrial Magistrate.

67      Subground (c) of this ground, asserted a factual error as to his Honour’s conclusion regarding the occurrence of a public holiday long weekend, as a contributing factor to Mr Paterson’s inability to get an appointment at the Swan Medical Centre.

68      On behalf of the respondent, it was contended that all subgrounds of this ground of appeal should be rejected.  As to the allegation in subground (a), in connection with Ms Morrice signing the statutory declaration, the respondent contended that the appellant advanced no authority for the proposition put.  The respondent submitted, both in its written submissions and also orally before the Full Bench, that the statutory declaration ‘stands alone itself’, as evidence that Mr Paterson was unwell on 1 to 3 October 2021 and was not able to attend work.  The respondent contended that the findings of his Honour did not turn on whether Ms Morrice attested to Mr Paterson’s state of ill health.

69      The difficulty the respondent faces on this point is that his Honour did place weight on the fact that Ms Morrice, in witnessing Mr Paterson’s statutory declaration, was a nurse.  At [156] his Honour noted that Superintendent Sinclair should not have just focused on whether Ms Morrice as a nurse, was authorised to witness a statutory declaration.  This point was developed further at [161] where his Honour referred to Ms Morrice as a ‘health professional, who is in a position to directly verify the matters described in Mr Paterson’s statutory declaration’. These conclusions were directed to matters his Honour clearly considered Superintendent Sinclair should have had regard to, and placed greater weight on, in the exercise of her discretion under what his Honour considered her role to be in accordance with cl 73.6 of the Agreement.

70      The respondent properly conceded that there was no independent evidence before the court, or before Superintendent Sinclair, from Ms Morrice or anyone else, as to Mr Paterson’s medical condition, apart from the content of his own statutory declaration.  The respondent also accepted that the reference to these matters by the learned Industrial Magistrate in the above extract of his reasons, was indicative of the broad view that his Honour took as to Superintendent Sinclair’s discretion under cl 73.6.

71      Under the Oaths, Affidavits and Statutory Declaration Act 2005 (WA) ss 11 and 12 deal with the making of a statutory declaration.  By s 12(3)(c), it is the person who makes the statutory declaration that must attest to the truth of the contents of it.  This is to be done in the presence of an attesting witness, who then under s 12(5), must sign the statutory declaration.  Eligible persons to do so are set out in schedule 2.  A nurse is an eligible attesting witness.  The statutory declaration made by Mr Paterson (see AB60), contains the signature of Ms Morrice as witnessing the truth of Mr Paterson’s declaration and her profession of a registered nurse, is recorded.

72      The presence of Ms Morrice as a witness to Mr Paterson’s statutory declaration was in that capacity only.  There was no other independent evidence, by Ms Morrice or anyone else, before either Superintendent Sinclair, or before the court, attesting to Mr Paterson’s state of ill health at the material time.  To the extent that his Honour placed any weight on Ms Morrice being a registered nurse, and being able to attest to the veracity of Mr Paterson’s state of ill health, in her capacity as a witness to the statutory declaration, his Honour erred.

73      As to subground (b), regarding the COVID-19 pandemic and his Honour’s reference to the demands imposed on the health system by it and measures taken by medical practices to discourage persons with possible COVID-19 symptoms from attending medical practices, these matters were referred to by his Honour at [169] - [170] of his reasons.

74      The respondent contended that these aspects of his Honour’s reasons were common ground and that there is no basis to assert that to make reference to them, meant his Honour took into account an irrelevant consideration.  Furthermore, the respondent submitted that there was evidence that COVID-19 did play a role in preventing Mr Paterson getting an appointment at the Swan Medical Centre, and in this respect, reference was made to Mr Paterson’s witness statement (see [18b] witness statement of Mr Paterson at AB49).

75      The fact of the pandemic over the course of 2020-21 is notorious and its impact on the Australian community, including pressures that it placed on the health system were, in our view, matters which his Honour was entitled to take judicial notice of:  Holland v Jones (1917) 23 CLR 149 per Isaacs J at 153.  However, there is a distinction to be drawn between the notoriety of the COVID-19 pandemic generally, and whether having regard to the circumstances of this case, it was material to the issue of whether Mr Paterson was unable to obtain a medical certificate for the purposes of cl 73.5(a)(i) of the Agreement.  The matters to which we have referred earlier, were clearly relied on by his Honour where, in the last sentence of [170] of his reasons, he concluded that Superintendent Sinclair failed to have proper regard to them in her decision to not approve Mr Paterson’s sick leave claim.

76      In the specific circumstances of this case, the evidence before the court was that Mr Paterson could not get an appointment at the Swan Medical Centre until either 5 or 6 October 2021, because his own treating doctor was on leave and due to the school holidays, he could not get an appointment with any of the other doctors at the practice.  He was told this by the receptionist at the medical centre (see [18b] witness statement of Mr Paterson at AB49).  The final sentence in [18b] in Mr Paterson’s witness statement is to the effect ‘this was also during the COVID‑19 pandemic’.  However, this was not evidence of what he was told by the medical centre.  Read in the context of his statement as a whole, this was plainly Mr Paterson’s own statement, which in and of itself, conflicts with his evidence in [18b] that the reason he was given by the medical centre for the lack of availability of doctors to see him, was leave and the school holidays.

77      Most importantly however, there was no evidence before the court or Superintendent Sinclair at the time she made her decision to refuse Mr Paterson’s sick leave claim, to the effect that Mr Paterson could not get an appointment at the Swan Medical Centre, because he was discouraged from attending the medical centre due to having possible COVID-19 symptoms.  The only evidence before Superintendent Sinclair, was Mr Paterson’s statutory declaration which said nothing about this issue, or more generally, as to why he was not able to obtain an appointment.  In the absence of any evidence to this effect, directly impacting on Mr Paterson’s attempt to obtain an appointment at the Swan Medical Centre to get a medical certificate, then it was, respectfully, erroneous for the learned Industrial Magistrate to conclude at [170] that the matters there set out should have been taken into account by Superintendent Sinclair, and materially affected the exercise of her discretion to refuse Mr Paterson’s sick leave claim.

78      Finally, as to subground (c), the appellant maintained that his Honour made a factual error in concluding at [171] that Mr Paterson’s illness coincided with a long weekend. The Queen’s Birthday long weekend in Western Australia in 2021 fell on Monday, 27 September 2021. This was the weekend prior to Mr Paterson’s attempts to get an appointment on 29 and 30 September 2021.  There was no direct evidence before the court, or that Superintendent Sinclair had these matters before her when making her decision.  It appears that nothing was raised as to the Queen’s Birthday long weekend by Mr Paterson with Superintendent Sinclair, as a reason he could not get an appointment at the Swan Medical Centre, or any other medical centre.  As we have already noted, Mr Paterson provided no explanation at all in his statutory declaration.  He simply stated he was unable to obtain a medical certificate.

79      There are difficulties in relying on matters such as the Queen’s Birthday long weekend, which occurred prior to Mr Paterson’s attempts to obtain an appointment at the Swan Medical Centre.  To have regard to these sorts of matters, necessarily invites speculation as to whether such an event had any material impact on the fact of whether an appointment at the medical centre was available or not, in the absence of direct evidence that it did.

80      Therefore to the extent that his Honour took into account these three matters, which were not material in establishing whether a contravention of cl 71.1 of the Agreement was made out, his Honour erred.  This ground of appeal is made out.

Grounds 6 and 7

81      It is unnecessary to deal with these two grounds that relate to the caution imposed by the learned Industrial Magistrate, having found that the Department contravened cl 71.1 of the Agreement by denying Mr Paterson his sick leave claim.

Conclusions

82      For all of the foregoing reasons, the appeal is upheld and the decisions of the learned Industrial Magistrate should be quashed.