DISPUTE RE CESSATION OF PAID SICK LEAVE FOR UNION MEMBERS

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 00951

DELIVERED : tuesday, 5 November 2024

FILE NO. : PSACR 3 OF 2024

Applicant

AND

Commissioner of Police, Western Australia Police Force

Respondent

CatchWords : Industrial Law (WA) – s 44 referral for arbitration – representation by a legal practitioner – questions of law raised – substantial questions of law – no further claims - Industrial Relations Act 1979 (WA) s 31

Legislation : Industrial Relations Act 1979 (WA)

  Police Force Regulations 1979 (WA)

Result : Leave for Counsel to appear granted

Representation:

Applicant : Mr S Farrell (as agent)

Respondent : Mr J Carroll (of counsel)

Case(s) referred to in reasons:

Civil Service Association of Western Australia Incorporated v Director General, Department of Justice (2003) 83 WAIG 503

Western Mining Corporation Ltd. v The Australian Workers’ Union, West Australian Branch, Industrial Union Workers and Others (1990) 70 WAIG 3525

Reasons for Decision

1         The Commissioner of Police, Western Australia Police Force (the respondent) seeks leave to be represented by counsel at the hearing in relation to this matter. The Western Australian Police Union of Workers (the applicant) objects to counsel appearing at the hearing.

2         The substantive matter before the Arbitrator concerns a decision the respondent made pursuant to reg 1304 of the Police Force Regulations 1979 (WA) (the Regulations). On 26 April 2023, the applicant’s member proceeded on paid sick leave. On 10 February 2024, the respondent informed the applicant’s member that it would cease paid sick leave. Subsequently, on or around 22 April 2024 the respondent decided to commence the process of medically retiring the applicant’s member and recommenced payment of sick leave.

3         The applicant seeks payment for that period and for annual leave accessed by the applicant’s member during the relevant period to be restored. The applicant seeks that the Arbitrator review the cessation of payment and nullify the respondent’s decision.

4         The respondent has applied to the Arbitrator for leave to be represented by legal counsel. As the applicant opposes the representation, I must decide whether to grant the respondent’s application.

Applicant’s Submissions

5         The applicant opposes counsel appearing in this matter for the respondent and submits that the Arbitrator ought not grant leave for the respondent to be legally represented because there is no serious issue of law to be argued in relation to this matter.

6         The applicant argues the only issue in dispute between the parties is the question of whether the Arbitrator should modify, nullify or vary the respondent’s decision to cease the payment to the applicant’s member during a period that the applicant’s member was not fit to work.

7         The applicant contends that the respondent’s decision involves an industrial matter, and the Arbitrator has the authority under s 80E (5) of the Industrial Relations Act 1979 (WA) (IR Act) to review this decision. The applicant argues that the respondent’s decision was unfair, and the respondent has exercised their discretion in an improper and harsh manner because the respondent did not consider relevant matters, and the respondent took into account irrelevant matters and/or made conclusions not supported by the evidence.

8         The applicant says that it has not argued that the respondent does not have the discretion to make the decisions it challenges nor is there any requirement to construe the regulations.

Respondent’s Submissions

9         The respondent opposes the orders sought and submits that:

a. The applicant’s substantive claim contravenes a ‘no further claims’ clause that is binding on the applicant;

b. The respondent’s decision was not industrial unfair in all of the circumstances; and

c. The Arbitrator does not have the power to order the relief sought by the applicant.

10      The fundamental issue arising in these proceedings is whether it was industrially unfair for the respondent to refuse to grant paid leave for incapacity to the applicant's member under reg 1304 of the Regulations.

11      The respondent contends that in determining whether the impugned decision was unfair, a question concerning the proper construction of the regulations and what matters or factors the respondent may, must, or must not take into account, must be answered.

12      The respondent submits that a further issue arises because the discretionary power to grant paid leave for incapacity is provided for in cl 39 Entitlement to Leave and Allowances through illness or injury of the Western Australian Police Force Industrial Agreement 2022 (2022 Agreement). As cl 9 of the 2022 Agreement provides that ‘there shall be no further claims during the term of this Agreement’, the applicant’s claim seeks to improve upon matters contained in the 2022 Agreement and it is contrary to equity and good conscience to make the orders sought.

13      The respondent submits that if the applicant’s claim for the respondent’s decision to be quashed is granted, it does not follow that the respondent has then exercised their discretion to grant paid leave for incapacity. The respondent says in these circumstances, no decision would have been made at all and it follows the applicant’s member would not have a basis to be paid during the period as he had been absent due to incapacity.

14      The respondent contends that the Arbitrator cannot grant the relief sought by the applicant. The respondent argues that the applicant is calling upon the Arbitrator to stand ‘in the shoes of’ the respondent and make a decision under reg 1304 that the applicant’s member be granted paid leave for incapacity for a specified period which occurred in the past. This effectively is seeking the issuing of an order that has a retrospective effect which the Arbitrator is precluded from making under ss 44 (13) and 39 of the IR Act.

Findings and Conclusions

15      Section 31(4) of the IR Act provides as follows:

Where a question of law is raised or argued or is likely in the opinion of the Commission to be raised or argued in proceedings before the Commission, the Commission may allow legal practitioners to appear and be heard.

16      In Western Mining Corporation Ltd. v The Australian Workers’ Union, West Australian Branch, Industrial Union Workers and Others (1990) 70 WAIG 3525 the Full Bench granted leave for counsel to appear. The Full Bench declined to set out a list of comprehensive principles for the exercise of the Commission’s discretion and noted that a question of law must be raised or argued, or likely to be argued. The right of representation and the discretion to grant leave for a legal practitioner to appear is to be exercised consistent with the provisions of the IR Act, including the objects of the Act, and, in particular s 6(c):

to provide means for preventing and settling industrial disputes not resolved by amicable agreement, including threatened, impending and probable industrial disputes, with the maximum of expedition and the minimum of legal form and technicality;

17      Senior Commissioner Beech in Civil Service Association of Western Australia Incorporated v Director General, Department of Justice (2003) 83 WAIG 503 (CSA) observed at [504]:

[36] It may be able to be said that most, if not all, proceedings before the Commission may involve some question of law. This is because the Commission is a creature of a statute which operates in accordance with that statute and arguments may arise regarding the interpretation of the statute. Further, matters of employment law are frequently central to the issues which are brought to the Commission. The point to be made is that s.31 of the Industrial Relations Act 1979 does not give a right to parties to be represented by counsel merely because a question of law is raised or argued or likely to be raised or argued. Therefore, the fact that a question of law may be raised of itself may not be sufficient justification for the Commission to exercise its discretion to permit counsel to appear. In other words, merely because the declaration and orders sought “relate or touch upon questions of law” (to quote from the respondent’s letter of 21 February 2003) does not mean that counsel is to be given leave to appear.

[37] Rather, the question of law raised or argued, or likely to be raised or argued, should be a question of substance and not mere technicality. I say this because the Act provides means for settling disputes with the maximum of expedition and the minimum of legal form and technicality. The prospect of there being raised unnecessary legal form and technicality, particularly, but not solely, where it inhibits the settling of industrial disputes may well not be the sort of consideration which would justify the exercise of discretion in favour of a legal practitioner appearing in a matter (Western Mining Corporation v. AWU, op.cit).

18      I find that it is not necessary to construe the regulations to determine whether the respondent exercised its discretion in an industrially fair manner in making the decision/s it did under reg 1304. The regulations provide a power to make the decision, and this is not contested. The memorandum of matters referred for hearing and determination under s 44 (9) of the IR Act set out the issues to be determined. The first issue is whether the exercise of the respondent’s power under reg 1302 was industrially unfair. In reaching a determination I may need to form a view of whether the factors considered by the respondent were relevant or whether the respondent considered factors that are not relevant. However, this does not raise substantive matters of law.

19      Applying the observations of Beech SC in CSA, I find that the respondent’s submissions concerning the operation and effect of the ‘no further claims’ clause in the 2022 Agreement, and the question of whether the Arbitrator has the necessary powers to make the orders sought by the applicant given the operation of s 39 of the IR Act, are matters that raise questions of law which are not insubstantial and the Arbitrator would benefit from the appearance of counsel.

20      Accordingly, leave is granted for the respondent to appear by legal practitioner.