2024 WAIRC 01034
APPEAL AGAINST A DECISION OF THE INDUSTRIAL MAGISTRATE IN MATTER M 145/2022 GIVEN ON 9 APRIL 2024
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 01034

CORAM
: FULL BENCH
SENIOR COMMISSIONER R COSENTINO
COMMISSIONER T EMMANUEL
COMMISSIONER C TSANG

HEARD
:
FRIDAY, 21 JUNE 2024

DELIVERED : THURSDAY, 12 DECEMBER 2024

FILE NO. : FBA 10 OF 2024 AND FBA 13 OF 2024

BETWEEN
(FBA 10 OF 2024)
:

MINISTER FOR CORRECTIVE SERVICES
Appellant

AND

WESTERN AUSTRALIAN PRISON OFFICERS' UNION OF WORKERS
Respondent

BETWEEN
(FBA 13 OF 2024)
:

WESTERN AUSTRALIAN PRISON OFFICERS’ UNION OF WORKERS
Appellant

AND

MINISTER FOR CORRECTIVE SERVICES
Respondent


ON APPEAL FROM:

JURISDICTION : INDUSTRIAL MAGISTRATES COURT
CORAM : INDUSTRIAL MAGISTRATE KUCERA
CITATION : 2023 WAIRC 00725 (CONTRAVENTION DECISION)
2024 WAIRC 00152 (PENALTY DECISION)
FILE NO : M 145 OF 2022


CatchWords : Industrial Law (WA) – Appeals against decisions of the Industrial Magistrate – Contravention decision – Appeal by way of rehearing pursuant to s 84 of the Industrial Relations Act 1979 (WA) – Construction of the Department of Justice Prison Officers’ Industrial Agreement 2020 – ‘rostered hours of work’ – Whether work on public holiday attracts overtime rates - Whether there is ambiguity – Determination of the proper construction –Whether the Industrial Magistrate exercised arbitral functions – Penalty decision – Application of body corporate penalty rate – Whether the penalty was manifestly excessive –– Appeal upheld
Legislation : Constitution Acts Amendment Act 1899 (WA)
Industrial Relations Act 1979 (WA)
Industrial Relations Amendment Act 2021 No 30 of 2021 (WA)
Interpretation Act 1984 (WA)
Prisons Act 1981 (WA)
Public and Bank Holidays Act 1972 (WA)
Public Sector Management Act 1994 (WA)
Workplace Relations Act 1996 (Cth)
Result : Appeal upheld
REPRESENTATION IN FBA 10 OF 2024:

Counsel:
APPELLANT : MR R ANDRETICH OF COUNSEL
RESPONDENT : MR D STOJANOSKI OF COUNSEL
Solicitors:
APPELLANT : STATE SOLICITOR’S OFFICE
RESPONDENT : SLATER AND GORDON LAWYERS
REPRESENTATION IN FBA 13 OF 2024:
Counsel:
APPELLANT : MR D STOJANOSKI OF COUNSEL
RESPONDENT : MR R ANDRETICH OF COUNSEL
Solicitors:
APPELLANT : SLATER AND GORDON LAWYERS
RESPONDENT : STATE SOLICITOR’S OFFICE


Case(s) referred to in reasons:
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450
Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd  [2016] FCAFC 181 Agencies for South West Accommodation Inc v Western Australian Municipal, Administrative, Clerical and Services Union of Employees & Ors [2024] WAIRC 353
Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480
Coochey v Commonwealth [2005] FCA 1165; (2005) 149 FCR 321
Director General, Department of Education v United Voice WA [2013] WASCA 287; (2014) 94 WAIG 1
House v The King [1936] HCA 40; (1936) 55 CLR 499
Hubbard Association of Scientologists International v The Attorney General for the State of Victoria [1976] VR 119
Janine Marie Callan v Garth Douglas Smith (2021) WAIRC 00216; 101 WAIG 1155
Martin Fedec v The Minister for Corrective Services [2017] WAIRC 00828; (2017) 97 WAIG 1595
McCourt v Cranston [2012] WASCA 60
Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68
Milardovic v Vemco Services Pty Ltd (Administrators Appointed) (No 2) [2016] FCA 244; (2016) 242 FCR 492
Minister for Corrective Services v Western Australian Prison Officers’ Union of Workers [2024] WAIRC 00758; (2024) 104 WAIG 1843
News Corporation Ltd and Ors v National Companies and Securities Commission [1984] FCA 446 (1984) 1 FCR 64
Patole v Child & Adolescent Health Service [2024] WASCA 126
Quasar Resources Pty Ltd v APG Aus No 3 Pty Ltd [2023] WASCA 171
Re Harrison; Ex parte Hames [2015] WASC 247
Sheryl Reardon v Gaetano Anthony Lagana (ABN 85 867 757 829) T/A Stratton Park Pharmacy [2019] WAIRC 00889; (2020) 100 WAIG 243
United Voice WA v Director General, Department of Education [2012] WAIRC 778; (2012) 92 WAIG 1655
United Workers’ Union v Compass Group Healthcare Hospitality Services Pty Ltd & Anor (No 2) [2024] SAET 49
Western Australian Prison Officers Union of Workers v Minister for Corrective Services [2023] WAIRC 867; 103 WAIG 1878
Western Australian Prison Officers’ Union of Workers v Minister for Corrective Services [2024] WAIRC 00227; (2024) 104 WAIG 623
WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536
Wright Prospecting Pty Ltd -v- Hancock Prospecting [2016] WASCA 50; (2016) 49 WAR 476
Case(s) also cited:
Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241
Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99
City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321George A Bond & Company Ltd (in liq) v McKenzi [1929] AR(NSW) 498
Kucks v CSR Limited [1996] IRCA 166; (1996) 66 IR 182
Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67
The Director General of the Department of Justice v The Civil Service Association (Inc) [2004] WAIRC 13765; (2004) 85 WAIG 629
Reasons for Decision
Table of Contents

COSENTINO SC: 6
Part 1 – Appeal against Contravention Findings 7
Relevant background 7
The Contravention Decision 8
The grounds of appeal 11
The nature of this appeal 12
Construction of industrial agreements – general principles 13
Ground 1: Is there ambiguity? 14
Grounds 2, 3 and 6: Do ‘rostered hours of work’ include public holidays for PROMF? 17
The 2020 Agreement’s text 17
Industrial context 18
Prior industrial instruments 18
Ground 4: The Industrial Magistrate’s consideration of evidence of custom and practice 23
Ground 5: Did the Industrial Magistrate exercise arbitral instead of judicial functions? 24
Part 2 – Penalty and remedies 24
The Penalty Decision 24
Grounds of appeal 26
Nature of the penalty appeals 26
Ground 7: Does the body corporate penalty regime apply? 27
Ground 8: Was the penalty manifestly excessive? 30
Part 3 – Notice of Contention/Cross Appeal 32
Ground 1: Costs 32
Ground 2: Was the finding of corrective action a specific error? 33

EMMANUEL C AND TSANG C: 34
Ground 1 36
Ground 2 40
Grounds 3, 4, 5, 6, 7 and 8 41
Cross appeal: Grounds 1 and 2 42
Disposition of FBA 10 of 2024 and FBA 13 of 2024 42

Schedule – Minister’s Grounds of Appeal 43
Glossary 46

COSENTINO SC:
1 The Western Australian Prison Officers’ Union of Workers’ member, Maureen Harvey, was employed by the appellant, the Minister for Corrective Services, to work as a principal officer at Karnet Prison Farm.
2 Principal Officer Harvey was rostered to work on 26 September 2022, being the King’s Birthday public holiday.
3 Principal Officer Harvey was paid her ordinary fortnightly salary for the fortnight in which the public holiday fell.
4 The Union claimed Principal Officer Harvey was entitled, under the Department of Justice Prison Officers’ Industrial Agreement 2020, to be paid overtime rates of pay on 26 September 2022 and that, because she was paid for ordinary time only, she was underpaid $215.51.
5 The Union commenced a claim in the Industrial Magistrates Court under s 83 of the Industrial Relations Act 1979 (WA) alleging that these circumstances amounted to a contravention of cl 22.1 and cl 33.3 of the 2020 Agreement.
6 The 2020 Agreement’s cl 22.1 says:
An Officer who is required to perform Overtime, other than in accordance with subclauses 22.3, 22.4 and 22.5, shall be paid at the rate of time and a half the Officer’s Hourly Annualised Rate of Pay for all Overtime hours worked.
7 Clause 33.3 says:
Overtime will be paid no later than the Pay Period following the Pay Period in which the Overtime was worked.
8 The issue before the IMC at first instance was whether the time worked was ‘overtime’ for the purpose of the 2020 Agreement. ‘Overtime’ is defined in the 2020 Agreement under cl 7 as:
(a) [I]n the case of Officers employed on a part time basis, all work performed at the direction of the Employer in excess of the Officer’s ordinary hours of work if notification to work the additional hours has not been given to the Officer more than 48 hours before the commencement of the shift, or where the additional hours exceed 120 hours per three week Roster Cycle.
(b) [I]n the case of an Officer employed in the Classification Prison Officer (Work Camps), work performed by the Officer at the direction of the Employer during a period in which the Officer is on Standby.
(c) [I]n the case of all other Officers, all work performed by an Officer at the direction of the Employer in excess of the Officer’s rostered hours of work.
9 The question was therefore whether, when working on 26 September 2022, Principal Officer Harvey was performing work in excess of her rostered hours of work.
10 The Industrial Magistrate ultimately found that Principal Officer Harvey was not required to work on public holidays as part of her rostered hours of work, and so when she did work as directed on 26 September 2022, she was performing overtime: [176]-[177]. Accordingly, the Industrial Magistrate found the Union had made out its claim.
11 The Industrial Magistrate then received the parties’ written submissions concerning penalty and remedies, and on 9 April 2024 ordered the Minister to pay a fine of $15,000 and pay Principal Officer Harvey $215.51.
12 In the matter FBA 10 of 2024, the Minister appeals from the Industrial Magistrate’s finding that it contravened the 2020 Agreement, and also appeals the penalty imposed on the basis the Industrial Magistrate erroneously applied the penalty for a body corporate and imposed a penalty that was manifestly excessive.
13 In the matter FBA 10 of 2024 the Union cross-appeals against the Industrial Magistrate’s failure to award costs to the Union, and against the penalty imposed on the ground the Union says the penalty is manifestly inadequate. The Union also commenced a separate appeal in the matter FBA 13 of 2024 with grounds identical to its cross-appeal in the matter FBA 10 of 2024.
14 Both the matters FBA 10 of 2024 and FBA 13 of 2024 were heard together. These reasons deal with both appeals. The first part of my reasons deal with the grounds of appeal concerning the contravention findings. The second part deals with the grounds of appeal relevant to penalty. The third part deals with the notice of contention and cross appeal.
Part 1 – Appeal against Contravention Findings
Relevant background
15 The relevant facts were substantially not in dispute. The parties agreed that:
a. From 6 November 2020, Principal Officer Harvey’s written contract of employment contained the relevant terms of her employment. Pursuant to the contract, Principal Officer Harvey worked regular 8-hour rostered shifts from Monday to Friday each week as a principal officer at Karnet Prison.
b. The 2020 Agreement was registered on 18 December 2020 and it applied to Principal Officer Harvey from that date.
c. Principal Officer Harvey’s salary classification as referred to in Schedule A of the 2020 Agreement was Principal Officer (Monday to Friday) (PROMF).
d. Principal Officer Harvey was rostered to work an 8-hour shift at Karnet Prison on Monday, 26 September 2022 in accordance with the roster for Karnet Prison as of 5 August 2022.
e. Principal Officer Harvey attended Karnet Prison and performed her rostered shift on 26 September 2022.
f. The King’s Birthday public holiday was recognised in Western Australia on 26 September 2022.
g. On 29 September 2022, Principal Officer Harvey was paid her fortnightly salary in respect of the periods of work she performed from 15 September 2022 to 29 September 2022.
h. Principal Officer Harvey was not paid any overtime or penalty rate in respect of the work that she performed at Karnet Prison on 26 September 2022.
The Contravention Decision
16 The Industrial Magistrate identified the elements of the Union’s claim, and issues to be determined at [8]-[10]:
8. The entitlement provision in issue is cl 22.1 of the 2020 Agreement which relevantly provides:
22.1 An Officer who is required to perform Overtime, other than in accordance with subclauses 22.3, 22.4 and 22.5, shall be paid at the rate of time and a half the Officer’s Hourly Annualised Rate of Pay for all Overtime hours worked.
9. ‘Overtime’ is a term that is defined in cl 7 of the 2020 Agreement. There are three limbs to the definition, the third of which, (c), applies to Ms Harvey. By this definition, overtime means:
(c) in the case of all other Officers, all work performed by an Officer at the direction of the Employer in excess of the Officer’s rostered hours of work.
10. To succeed in the claim, the Union must prove:
1. Ms Harvey worked on 26 September 2022 (King’s Birthday Public Holiday);
2. the work Ms Harvey performed on the King’s Birthday Public Holiday was in excess of her rostered hours of work; and
3. the Department directed Ms Harvey to work on the King’s Birthday Public Holiday.
17 His Honour set out the uncontentious facts, largely drawn from the agreed facts and agreed documents.
18 At [32]-[50] his Honour identified the relevant provisions of the 2020 Agreement as:
a. cl 7 definitions of ‘Overtime’, ‘Annualised Salary’, ‘Classification’, ‘Officer’ and ‘Public Holidays’;
b. cl 10.2;
c. cl 19.1 concerning ordinary hours;
d. cl 22;
e. cl 32.1, cl 32.4 and cl 32.5;
f. Schedule A; and
g. cl 136.
19 Under the heading ‘Dispute Over the Interpretation of clause 136’ at [51]-[52], his Honour noted that ‘[o]ne of the matters’ the parties were at odds over was the interpretation of the meaning of the words ‘except where specifically provided for in this Agreement’ in cl 136.3 and the words ‘Monday to Friday and are not required to work Public Holidays’ in cl 136.4.
20 At [53] his Honour said:
The need for clarity around the use of the words used in cl 136.3 and cl 136.4 arises because under cl 136.4, Officers who are not required to work on public holidays do not receive an additional payment for, or a ‘portion’, in their annualised salary for working on public holidays. (footnote omitted)
21 After summarising the parties’ submissions, and the settled principles in relation to interpreting industrial agreements, his Honour concluded at [85]:
There is sufficient ambiguity in the terms of the 2020 Agreement to warrant a consideration of the surrounding circumstances and the context in which it was negotiated. On this, context may be drawn from the series of industrial agreements that preceded the making of the 2020 Agreement.
22 His Honour does not say precisely what ambiguity in the terms of the 2020 Agreement he had identified, to warrant recourse to surrounding circumstances. In any event, his Honour proceeded to undertake an analysis of the history of industrial agreements that preceded the 2020 Agreement.
23 In his Honour’s analysis of this history, he noted that between 2013 and 2020 the structure and terminology of successive agreements were the same in relevant respects. However, he identified that there were significant differences between the Department of Corrective Services Prison Officers’ Enterprise Agreement 2010 and the Department of Corrective Services Prison Officers’ Enterprise Agreement 2013, relevant to the annualised salary issue concerning principal officers. In summary:
a. Prior to the 2013 Agreement, there were separate classifications for PROMF and ‘Principal Officer Monday to Friday plus Public Holidays’, the latter having a higher annual salary. The 2013 Agreement and subsequent agreements only had a PROMF classification: [98]-[99], [117], [155].
b. Prior to the 2013 Agreement, the Prison Officers’ Award applied in conjunction with the relevant agreement. Clause 26.1 of the Award says ‘[a]ll Officers will be paid an annualised salary which will include a component in lieu of shift penalty payments, accrued days off, public holidays and overtime’: [96]-[97].
c. The 2013 Agreement was a stand-alone agreement which excluded the operation of the Award. In relation to annualised salaries it said:
31.1 The annualised rate of pay for Officers working Monday to Friday shall include only wages for ordinary hours of work.
31.2 The annualised rate of pay for Officers working shiftwork shall include the Monday to Friday rate for the Classification and a component in lieu of shift penalty payments, Public Holidays and Accrued Days Off.
e. The 2013 Agreement no longer had a ‘Principal Officer Monday-Friday plus Public Holidays’ classification. It did have PROMF and ‘Principal Officer Shiftwork’ classifications: [117].
24 From this history, his Honour concluded at [125] that PROMF officers were entitled to paid days off for public holidays under the 2013 Agreement, consistent with how that same classification was treated under the 2010 Agreement. He reached this conclusion for three reasons at [120]-[123]:
120. … First, if the parties had intended to stipulate that principal officers were required to work on public holidays for which they would receive no additional payment, the 2013 Agreement and the successor agreements would have included express provisions to this effect.
121. Secondly, such a construction, particularly in the absence of an express provision which clarifies that principal officers working Monday to Friday are required to work on public holidays as part of their roster hours for which they would receive no additional payment, is inconsistent with cl 31.1 of the 2013 Agreement.
122. Thirdly, if principal officers were required to work on public holidays, it would follow that the annualised salaries carried over from the 2010 Agreement, to which the wage increases under the 2013 Agreement and the successor agreements were applied, would be the annualised salary rates for the Principal Officer (Monday to Friday plus Public Holidays).
123. However, this is not what happened. The rates from the 2010 Agreement for the Principal Officer (Monday to Friday) classifications, to which the wage increases were applied in the 2013 Agreement, were the Monday to Friday rates, which did not include a ‘portion’ for working on public holidays.
25 In the following paragraphs, [126]-[149], his Honour sets out why this conclusion is consistent with the various other provisions of the 2013 Agreement, including the fact that the ‘Vocational Support Officer Monday to Friday plus Public Holidays’ classifications are paid a higher annualised salary than equivalent ‘VSO Monday to Friday’ only classifications.
26 In short, his Honour was attempting to glean from the scheme of the 2013 Agreement as a whole, whether the annualised salary of the PROMF classification included payment for working public holidays or not, and whether such officers were required to work on public holidays as part of their rostered hours or ordinary hours. He concluded at [148]:
As the annualised salary for Officers in Monday to Friday classifications under the 2013 Agreement only includes wages for ordinary hours of work (emphasis added) it follows that where Officer is employed in a Monday to Friday classification, work on public holidays would be additional to or in excess of, an Officer’s rostered hours.
27 His Honour then analysed whether any changes made by the Department of Corrective Services Officers’ Industrial Agreement 2016 and the Department of Justice Prison Officers’ Industrial Agreement 2018 which succeeded the 2013 Agreement, had the effect of altering the position as it was under the 2013 Agreement. Essentially, he found the relevant wording of these agreements was not materially different to the 2013 Agreement: [156]. Further, he noted that the wage increases under the agreements were consistent across all classifications: [157]. This indicated that the position continued unchanged. That is, ‘work on public holidays for Principal Officers in Monday to Friday classifications, under the 2016 and 2018 Agreements, is additional to or in excess of, an Officer’s rostered hours’: [158].
28 His Honour then came to consider the 2020 Agreement. He noted that the 2020 Agreement contained a slight change of relevant wording in cl 32.4. Clause 32.4 says:
The Annualised Salary for Officers working Monday to Friday incorporates payment for ordinary hours of work and Easter Sunday
29 His Honour noted that the word ‘only’ before the word ‘incorporates’ was omitted from cl 32.4 of the 2020 Agreement, but appeared in equivalent clauses of the preceding agreements: [160].
30 His Honour concluded this alteration was not intended to effect any substantive change: [162]. He concluded the arrangements for payment of the annual salary, hours of work, rostering and public holidays carried over from the earlier agreements without any change [163]. This was supported by the fact that the salary increase under the 2020 Agreement was a flat $1000 increase for all classifications indicating there was no additional amount paid to PROMF for a new obligation to work on public holidays: [165]-[166].
31 At [167]-[172], his Honour considered the evidence regarding the practice of principal officers working on public holidays. He considered the evidence showed that ‘it appears to have been understood and accepted industrial practice that principal officers at Karnet, would be able to, and did, access the entitlement under cl 136.1 to paid days off for public holidays.’ The evidence he relied on in this regard was not identified. But the Union had relied on a witness statement of Principal Officer Harvey in which she said that when she took up the role of Principal Officer at Karnet Prison in November 2020, she was told by the Assistant Superintendent of Operations that she would be permitted to have public holidays off, and that she was usually permitted to be away from work on public holidays on ordinary pay until April 2022: Maureen Harvey Witness Statement at [9]-[10].
32 His Honour relied on this evidence to support his conclusion that the 2020 Agreement, or more specifically the omission of the word ‘only’, did not change the pre-2020 Agreement position in relation to PROMF: [167]-[168].
33 His Honour relevantly concluded:
174. The clause when read in the context of the agreement as a whole, confirms the Annualised Salaries that appear in Schedule A for the classification of Principal Officer (Monday to Friday) is only for ordinary hours and that payment for working on public holidays is not included in those Officers’ Annualised Salaries.
175. The rostered hours for a Principal Officer (Monday to Friday) are, by reason of the salary prescribed in Schedule A, the ordinary hours for that classification. An Officer who is only paid an Annualised Salary for working ordinary hours, does not receive the portion in their Annualised Salary that is referred to in cl 136.3 for working public holidays.
176. As Principal Officers (Monday to Friday) are not paid for working on public holidays, it follows these days would fall outside their rostered hours.
177. For this reason, I have concluded that public holidays do not form a part of the rostered hours for Principal Officers in Monday to Friday classifications. As a result, the work Principal Officers (Monday to Friday) perform on public holidays would fall within the definition of ‘Overtime’ under cl 7 of the 2020 Agreement. That is, work performed on Public Holidays would be ‘in excess of the Officer’s rostered hours of work’.
178. For these reasons, I am satisfied the Union has, on the balance of probabilities, proved that Ms Harvey’s work on the King’s Birthday Public Holiday was in excess of her rostered hours.
The grounds of appeal
34 The Minister raises eight grounds of appeal. Six concern the Industrial Magistrate’s approach to the construction of the 2020 Agreement, in the process of finding the 2020 Agreement was contravened. Two grounds relate to penalty. Rather than set the grounds out verbatim here, they are annexed as a schedule to this decision. I will, however, attempt to distil the essence of each ground.
35 Ground 1 alleges error by finding that there was ambiguity in the 2020 Agreement ‘in relation to whether Principal Officers were entitled to a paid day off on Public Holidays’ warranting recourse to the surrounding circumstances. Ground 1 contends that there are three indicators in the text of the 2020 Agreement that make it clear officers are not entitled to a paid day off on public holidays, so there is no ambiguity. The indicators relied on are:
a. cl 136.3 which states ‘[e]xcept where specifically provided for in this Agreement payment for work performed on all Public Holidays is included in an officer’s Annualised Salary’;
b. the absence of a principal officer classification in Schedule A Classifications which provides for Monday to Friday plus public holidays; and
c. the absence of any other provision in the 2020 Agreement that expressly or specifically entitles principal officers to be paid overtime for work performed on public holidays.
36 Ground 2 alleges error by failing to find that Principal Officer Harvey’s rostered hours included the 26 September 2022 public holiday, given Principal Officer Harvey:
a. was engaged to work 120 ordinary hours over three weeks under cl 18.1 of the 2020 Agreement;
b. was rostered as part of those hours to work on 26 September 2022; and
c. there is no provision in the Agreement that public holidays are paid days off for principal officers.
37 Ground 3 alleges that if it was permissible to have regard to preceding industrial instruments as an aid to construction, the Industrial Magistrate made incorrect factual findings about those industrial instruments. Ground 3 alleges that the predecessor industrial instruments include the Department of Corrective Services Prison Officers’ Enterprise Agreement 2007 and the Award, which, taken together, support a construction whereby PROMF’s annualised salary includes payment for work performed on public holidays.
38 Ground 4 is that the Industrial Magistrate erred in fact in finding there was evidence that principal officers were entitled to paid days off for public holidays and erred in law by having regard to this finding in informing the meaning of the 2022 Agreement.
39 Ground 5 alleges the Industrial Magistrate erred by approaching the task of construing the 2020 Agreement as if the Court was exercising arbitral powers. The ground is not particularised and does not identify any particular part of the Industrial Magistrate’s reasoning it is directed at.
40 Ground 6 alleges the Industrial Magistrate erred in his construction of the 2020 Agreement by failing to have sufficient regard to the industrial context, namely, the nature of correctional facilities, and the consequences of his Honour’s construction for other prison officer classifications.
The nature of this appeal
41 An appeal to the Full Bench from the IMC under s 84 of the IR Act is an appeal by way of rehearing. The appellant must establish error, of either law or fact or both, before the powers in s 84(4) are invoked. Where an error of fact is alleged, it is open to the Full Bench to make its own findings of fact based on the evidence before the Industrial Magistrate: Sheryl Reardon v Gaetano Anthony Lagana (ABN 85 867 757 829) T/A Stratton Park Pharmacy [2019] WAIRC 00889; (2020) 100 WAIG 243 per Kenner SC at [24]-[26].
42 Several of the appeal grounds raise issues of the correct construction of the 2020 Agreement. The correct construction of the 2020 Agreement is not a matter of judicial discretion, but is a matter of law. The correctness standard of appellate review applies. The first instance decision is susceptible to appellate intervention if it is wrong. But if the answer arrived at by the Industrial Magistrate to a constructional issue was correct, any error in the reasoning process will not result in the appeal being upheld.
Construction of industrial agreements – general principles
43 The principles that apply in the construction of industrial instruments are not in dispute. They were stated in Martin Fedec v The Minister for Corrective Services [2017] WAIRC 00828; (2017) 97 WAIG 1595 and Re Harrison; Ex parte Hames [2015] WASC 247. Justice Beech summarised the principles in Re Harrison; Ex parte Hames at [50]:
(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. (footnote omitted)
44 Additionally, Buss J in Director General, Department of Education v United Voice WA [2013] WASCA 287; (2014) 94 WAIG 1 stated at [83]:
The words of a clause in a written agreement are to be given the most appropriate meaning which they can legitimately bear. A court must have regard to all of the provisions of the agreement with a view to achieving harmony among them. See Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99, 109  110 (Gibbs J). These propositions are applicable to instruments generally, subject to any particular rules of construction which have been developed in relation to a particular kind of provision or instrument.
45 Where the particular kind of instrument being construed is an industrial agreement, it was stated in WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 at [197] that:
The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 (Holmes) at 378 (French J). The interpretation “turns on the language of the particular agreement, understood in the light of its industrial context and purpose”: Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 (Amcor) at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 3789, citing George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop, Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).
Ground 1: Is there ambiguity?
46 The core issue between the parties was whether the hours Principal Officer Harvey worked on 26 September 2022 were her ‘rostered hours of work’ for the purpose of the 2020 Agreement’s definition of overtime. This involved first, a question of construction as to the meaning of ‘rostered hours of work’ and second, a question of fact.
47 The parties were stridently apart as to their respective conclusions that the relevant hours were, or were not, rostered hours of work. How they arrived at those opposite corners was more difficult to immediately discern. At times the routes were circular. At other times the routes were just foggy. In fairness to Counsel, this is unsurprising given the 2020 Agreement’s muddled drafting.
48 The Union’s Counsel identified the construction issue as ‘[d]oes the annualised salary, in the classification for [PROMF] contain a compensation portion for working public holidays or not’.
49 The Minister’s Counsel essentially urged the Full Bench to look to the 2020 Agreement as a whole, to find that the PROMF classification’s annualised salary includes compensation for working public holidays:
ANDRETICH, MR: … But unless you are a “Plus public holiday” classification – unless you have a “Plus public holiday” classification, in addition to a plain Monday to Friday, that’s it. Monday to Friday includes compensation for your work on Monday to Friday, where there is a public holiday in that span.
COSENTINO SC: And that is the key issue. That’s what we need to decide, is whether the annualised salary for a Principal Officer, Monday to Friday, includes compensation for working public holidays.
ANDRETICH, MR: That’s it. No more.
…
COSENTINO SC: So in summary, the Minister’s position is that the definition of overtime’s reference to rostered hours of work… means the hours for which the annualised salary is paid. And clause 136.3 makes it clear that annualised salary is paid in respect of public holidays, because it’s not specifically provided otherwise.
ANDRETICH, MR: Yes. And overtime is being directed to work outside your rostered hours. Those rostered hours are set in accordance with clause 19.
50 And so, it appeared to be common to both parties’ position that ‘rostered hours of work’ in the definition of ‘overtime’ means the hours for which the annual salaries are paid for the purpose of the 2020 Agreement.
51 It could not be otherwise. The alternative, that ‘rostered hours’ are the hours that an employee is as a matter of fact rostered to work, would enable the employer to circumvent the overtime provisions of the 2020 Agreement entirely by rostering an employee to work hours that would otherwise attract overtime rates.
52 The question is not one that can be answered by giving meaning to any particular express words used in the 2020 Agreement, but, as the Minister submitted, by looking at the 2020 Agreement as a whole to discern the underlying, objective intention of the annualised salary.
53 As to this key question of whether the annualised salary is intended to compensate non-shift workers, or more specifically, PROMF officers, for work performed on public holidays, the 2020 Agreement contains both confusing and conflicting indications.
54 Annualised Salary is defined under cl 7 of the 2020 Agreement to mean:
[T]he salary rate that applies to each Classification as set out in Schedule A – Annualised Salaries. The Annualised Salary for Officers working shift work shall include the Monday to Friday rate for the Classification and a component in lieu of shift penalty payments, Public Holidays and accrued days off.
55 The express reference to the annualised salary including a component for public holidays in the case of shift work might indicate that the annualised salary does not include such a component in other cases.
56 Schedule A is headed ‘Annualised Salaries’. Its structure is notable. It contains six Prison Officer classification titles: from ‘Trainee Prison Officer’, ‘Prison Officer’, ‘[Assistant Senior Officer (ASO)]/First Class Officer’, ‘Senior Officer’, ‘Principal Officer’ and ‘Vocational Support Officer’. Within the classifications for ‘Prison Officer’, ‘ASO/First Class Officer’, ‘Senior Officer’ and ‘Principal Officer’, the classifications are divided into ‘(Mon-Fri)’ and ‘(Shifts)’, and in some instances, ‘Alternate Weekends’. However, the Level 2 VSO and Level 3 VSO classifications contain another annualised salary rate for a classification described as ‘Mon-Fri (plus Public Holidays)’. The rate of pay for those classifications is higher than for the same level VSO ‘(Mon-Fri)’ classification.
57 Again, the omission of a classification or particular rate of pay for Monday to Friday plus Public Holidays for positions other than VSO might indicate that the annualised salary does not include a component for public holidays where Monday to Friday only is specified.
58 Clause 19 is headed ‘Hours of Duty’. It relevantly says:
19.1 The ordinary hours of work for Officers engaged on a full time basis will be 40 hours per week, 80 hours per fortnight or 120 hours per three weeks unless otherwise agreed by the Union and the Employer.
…
19.7 The Union agrees to enter into negotiations at the request of the Employer to vary shift lengths to enable a more efficient and effective deployment of staff suitable to operational requirements without adverse impact on the Officers bound by this Agreement. The Employer will follow the provisions set out in clause 177 - Introduction of Change when making a request.
59 The above sub-clauses use the terminology ‘ordinary hours’ rather than ‘rostered hours.’ Clause 19 otherwise says nothing about hours worked on public holidays.
60 Clause 32, headed ‘Rates of Pay,’ contains the following:
32.4 The Annualised Salary for Officers working Monday to Friday incorporates payment for ordinary hours of work and Easter Sunday.
32.5 The Annualised Salary for Officers working shift work incorporates the Monday to Friday rate (including Easter Sunday) for the Classification and a component in lieu of shift penalty payments, Public Holidays and Accrued Days Off. Where a total rate is used, individual component parts of penalties, allowances, and base rates should be identified.
61 Again, the omission of reference to the inclusion of Public Holidays other than Easter Sunday for Monday to Friday employees in cl 32.4, in contrast to shift workers, might point to an intention that the Annualised Salary is not calculated and paid for work on public holidays.
62 The 2020 Agreement contains no penalty rates for the performance of work on public holidays. It is common industrial practice to provide for payment of penalty rates to employees who are required to work on public holidays, as compensation for the disutility associated with working on a day when the vast majority of other employees are enjoying a day of leisure: see, for example, Re 4 Yearly Review of Modern Awards - Penalty Rates [2017] FWCFB 1001; (2017) 265 IR 1 at [41].
63 The 2020 Agreement contains no express provision entitling employees to be absent from work on public holidays. Clause 136.1 of the 2020 Agreement provides:
For the purposes of this Agreement the following days, or the days observed in lieu shall, be recognised as Public Holidays: New Year’s Day, Australia Day, Good Friday, Easter Monday, Anzac Day, Labour Day, Western Australia Day, Sovereign’s Birthday, Christmas Day and Boxing Day.
64 The word ‘observed’ in this clause does no more than describe the days which are ‘observed’ as public holidays in Western Australia generally or under the Public and Bank Holidays Act 1972 (WA). In other words, these are the days that public holidays are commemorated generally in the community. It simply describes what public holidays are, not what the obligations and entitlements of the employees and employer are.
65 Under clause 136, the parties ‘recognise’ the observed public holidays. Recognising these days as public holidays does not equal an entitlement not to work on public holidays. It does mean that if any particular entitlements found elsewhere in the agreement attach to ‘public holidays’, those observed days will be recognised so as to attract the entitlement. Entitlements may include an entitlement to be absent from work, to payment of penalty rates for working, to take a day off in lieu of a public holiday worked, to extend a period of annual leave or long service leave if a public holiday falls within a period of paid leave. The entitlement, however, must be found elsewhere.
66 Clause 136.1 cannot mean that employees are entitled to be absent from work on public holidays. To construe cl 136.1 in that way has the absurd result that all officers, including those working shiftwork, would be entitled to be absent from work on public holidays, unless directed to work the public holiday. It is common ground that officers working shifts have no such entitlement, and this is obvious from the structure and content of the 2020 Agreement.
67 On the other hand, cl 136.3 and cl 136.4 say:
136.3 Except where specifically provided for in this Agreement payment for work performed on all Public Holidays is included in an Officer’s Annualised Salary.
136.4 Officers who work Monday to Friday and are not required to work Public Holidays will not receive the Public Holiday portion in their Annualised Salary. However, if a Public Holiday falls during such an Officer’s annual leave, the Officer will receive a paid day in lieu which will be taken immediately following the annual leave, or at a time mutually acceptable to the Employer and the Officer.
68 As the Minister pointed out, these provisions suggest the default position is that the annualised salary is paid for work performed on public holidays.
69 These apparent inconsistencies make the 2020 Agreement difficult to understand. Except in the case of shift work, it is far from clear on the face of it, what hours of work annual salaries are paid for. The 2020 Agreement is ambiguous. It is therefore proper to have regard to surrounding circumstances to resolve the ambiguity: McCourt v Cranston [2012] WASCA 60 at [24] per Pullin JA, with whom Newnes JA agreed.
70 This disposes of the Minister’s appeal ground 1, which I would dismiss.
71 However, I consider the Industrial Magistrate’s enquiry into the predecessor agreements as relevant surrounding circumstances, came at the constructional issue from the wrong side.
72 The ambiguity that needed to be resolved was the meaning of ‘rostered hours of work,’ specifically whether rostered hours of work for a PROMF included public holidays or not. No doubt cl 136.3 and 136.4 are relevant textual context for determining this question. But it was supposed ambiguity in cl 136 which the Industrial Magistrate attempted to resolve by recourse to the predecessor industrial instruments.
73 This was an unusual course to take. If the meaning of cl 136 on its face was not clear, it could not meaningfully inform the construction of the ambiguous phrase ‘rostered hours of work’. To construe one ambiguous phrase to inform the meaning of another ambiguous phrase creates a shaky foundation for finding meaning. It necessarily involves circularity. Should the ambiguity in the definition of ‘overtime’ be resolved by resolving the ambiguity in cl 136? Or should the ambiguity in cl 136 be resolved by resolving the ambiguity in the definition of ‘overtime’?
Grounds 2, 3 and 6: Do ‘rostered hours of work’ include public holidays for PROMF?
74 The Minister’s appeal grounds 2, 3 and 6 all involve alleged errors in construction of the 2020 Agreement as it concerns rostered hours of work and public holidays. Faced with an alleged error in construction of the clause, the Full Bench must determine for itself the proper construction: Quasar Resources Pty Ltd v APG Aus No 3 Pty Ltd [2023] WASCA 171 at [19] per Beech and Vaughan JJA. It is therefore convenient to deal with grounds 2, 3 and 6 together, by determining the proper construction of the 2020 Agreement.
The 2020 Agreement’s text
75 Determining the proper construction must start with the agreement’s text. I have discussed the key parts of the text under the heading ‘Ground 1: Is there ambiguity’. That discussion reveals conflicting indications of intent, rather than elucidation.
76 Clauses 26–31 are also important context. They set out comprehensively the requirements for development of rosters, posting of rosters and shift swaps. All positions required to be filled to fulfill the operational requirements of a prison ‘on any given day’ must be identified in the roster for the prison: at cl 26.1. All officers must be listed in the roster, whether on duty or absent for any reason: at cl 26.2. In other words, the roster must show all employees’ actual hours of duty, as well as leave periods.
77 These provisions about rostering of officers are designed to strike a balance between the safe and fair allocation of shifts amongst employees and meeting the operational requirements of the prison. Importantly though, rosters do not only indicate a person’s ordinary hours of duty. They also indicate who is absent, and duty outside of ordinary hours.
Industrial context
78 The Minister submitted that the nature of correctional facilities and employment in them is relevant and important context. Prisons operate every hour of every day of the year. They do not shut on public holidays.
79 The security of prisons and their efficient operation is dependent on minimum staffing levels being met at all times, including on public holidays. I have no hesitation in accepting that all classifications of prison officer, other than VSOs, may regularly be required to work on public holidays for correctional facilities to operate in accordance with their statutory obligations. The learned Industrial Magistrate did not appear to give any consideration to this factor. He should have. This context means it is likely the parties to the 2020 Agreement intended to structure it to enable the continuous operation of safe and secure prisons, including by operating prisons on public holidays and requiring officers to work on public holidays.
80 However, while this context is relevant, it is not conclusive of the issue needing determination. The issue is not whether a PROMF is entitled to be absent from work on a public holiday. The issue is whether an officer is entitled to be paid overtime rates for such work.
Prior industrial instruments
81 The Minister points out, and it is uncontroversial, that the concept of annualised salaries was introduced when the Award, previously known as the Gaol Officers’ Award No. 12 of 1968 was varied to roll separate overtime, penalty rates, shift allowances and other benefits into a single annualised rate of pay. Clause 41(1) of the Award stated clearly:
All Officers will be paid an annualised salary which will include a component in lieu of shift penalty payments, accrued days off, public holidays and overtime.
82 The classifications in the Award at that time included:
Prison Officers Mon – Fri
Prison Officers Shifts
First Class Prison Officers Mon – Fri
First Class Prison Officer Shift
Senior Officers Mon – Fri
Senior Officers Shift
Industrial Officer Mon- Fri
Industrial Officer Mon – Fri + Public Holidays
83 These provisions replicated the Gaol Officers’ Industrial Agreement No. AG 64 of 1994.
84 The 1994 Agreement recorded the rationale for this structure and scheme:
6. —Background to Agreement.
(1) The Operational Efficiency Committee representing both parties to the Agreement was formed by the parties to develop improvements in productivity and flexibility of work practices within prisons in Western Australia.
(2) The parties have reached agreement to implement changes to ensure that Western Australia prisons are competitive with prisons operated by the private sector throughout Australia.
(3) In order to be competitive with prisons operated by the private sector, net annual savings of 10% of the Prisons Operations budget (“the savings” —calculated on the 1993/94 budget to be at least $8 million) have been identified as being achievable through amendments to the Award, the Prisons Regulations 1982 and the implementation of this Agreement.
(4) Provided the implemented changes do achieve the savings to enable Western Australian prisons to be competitive with those in the private sector, the Attorney-General and the Government have undertaken not to privatise a Western Australian prison or contract out the standard duties of prison officers in Western Australia before 31 December 1997.
(5) Should the Union or its members fail to meet their obligations under this Agreement the Attorney-General and the Government may choose to privatise any Western Australian prison or contract out any duties of prison officers.
7.—Aims and Objectives of the Agreement.
(1) The aims and objectives of this Agreement are to—
(a) improve efficiency and flexibility of working and administrative arrangements within Western Australian prisons;
(b) continue to develop and maintain improved quality and efficiencies within W.A. prisons.
(2) To achieve the aims and objectives the following principles will be adhered to—
(a) mutual respect and a professional attitude will prevail at all times;
(b) a safe working environment;
(c) the opportunity for proper and effective consultation by the parties prior to the introduction of any major change in accordance with Clause 26.— Introduction of Change of the Award;
(d) improved utilisation of skills; and
(e) a decrease in costs and absenteeism.
8.—Method of Implementing Change.
(1) The parties after detailed consideration and consultation have formulated a method of implementing change to achieve the savings referred to in Clause 6.—Background to Agreement of this Agreement.
(2) Change has been achieved through amendments to the Award and the Prison Regulations 1982 and this Agreement. Particular changes which have been identified by the parties to achieve savings include the following:
(a) Staff Reductions
Prison Operations positions are to be reduced by 28 full time equivalent positions. The positions which will be abolished are:
(i) Casuarina Prison: 1 Senior Officer, 5 Prison Officers, 5 Trade Trainers, 1 Level 3 Public Servant;
(ii) Canning Vale Prison: 2 Senior Officers, 6 Prison Officers;
(iii) Metropolitan Security Unit: 2 Prison Officers;
(iv) Wooroloo Prison Farm: 5 Prison Officers, 1 Level 1 Public Servant.
(b) Public Holidays
The Award has been amended to remove penalty rates for rostered shifts on public holidays, and to remove days off in lieu for Officers not rostered to work on public holidays. Officers receive one day’s pay for each public holiday as part of the annualised salary. These amendments are calculated to achieve savings of 50 full time equivalent positions.
Industrial officers who work Monday to Friday and are not required to work public holidays will not receive the public holiday portion of their annualised salary, however, if a public holiday falls during such an officer’s annual leave, the officer will receive a paid day in lieu.
85 The position under the Award, and the 1994 Agreement, was clearly that all officers other than Industrial Officers who work Monday to Friday were required to work public holidays, and their annualised salary compensated them for doing so.
86 The Award provisions were incorporated into the 2007 Agreement: cl 5.3, except that the 2007 Agreement included a new classification of ‘Principal Officer’, which was not contained in the Award. The classification of ‘Principal Officer’ was a Monday to Friday classification only. There was no classification for ‘Principal Officer - Shifts’. Also, the 2007 Agreement referred to ‘Vocational Support Officers’ or ‘VSOs’ in the place of ‘Industrial Officers’.
87 The position remained that the annualised salary for Monday to Friday classifications other than VSO Monday to Friday plus public holidays were required to work public holidays, and their annualised salaries compensated them for doing so.
88 The Award provisions were also incorporated into the 2010 Agreement: cl 5.3 and cl 5.4. However, the 2010 Agreement contained new annualised rates of pay for Principal Officers:
a. ‘Alternate Weekends 8 Hours’;
b. ‘Alternate Weekends 10 Hours’;
c. ‘One Weekend in 4’; and
d. ‘Monday – Friday plus Public Holidays’.
89 At this time, then, the position for PROMF changed significantly. PROMFs were clearly no longer required to work public holidays, nor did their annualised salary compensate them for doing so, the salary for that classification being less than the salary for ‘Principal Officer Monday-Friday plus Public Holidays’.
90 Then, in 2013, two further significant changes occurred. First, the agreement no longer incorporated the Award’s provisions or its definition of ‘annualised salary’: clause 6.2. Instead, the 2013 Agreement defined ‘annualised salary’:
Annualised Salary for each Classification, the increments if any for that Classification, and the date from which the salary rate applies is set out in Schedule A – Annualised Salaries of this Agreement. The Annualised Salary for Officers working shiftwork shall include the Monday to Friday rate for the Classification and a component in lieu of shift penalty payments, Public Holidays and Accrued Days Off.
91 This definition departs from the Award’s treatment of annualised salaries as it is only for shiftwork that the annualised salary is identified as including a component for public holidays. This is a strong indication that the 2013 Agreement intended a departure from the previous position whereby all annualised salaries rolled in all penalties.
92 Second, the ‘Principal Officer Alternative Weekends 8 Hours’, ‘Principal Officer One Weekend in 4’ and ‘Principal Officer Mon-Fri plus Public Holidays’ classifications were removed. This left PROMF, ‘Principal Officer Alternate Weekends 10 Hours’ and ‘Principal Officer Alternate Weekends 12 Hours’.
93 Further, as the Industrial Magistrate noted, the annualised rate of pay for the PROMF classification represented no more than the application of the 4.25% pay increase that applied from 11 June 2013 under the 2013 Agreement, to the rate of pay for that classification under the 2010 Agreement. In other words, there was no additional component paid to reflect any change to the Monday to Friday classification such that it would, from 2013, include compensation for working public holidays.
94 This indicates that the effect of the changes in the 2013 Agreement were not to add a requirement to work public holidays to the PROMF classification, but rather to simply remove the classification ‘Principal Officer Mon-Fri plus Public Holidays and leave the existing Monday to Friday classification unchanged.
95 PROMF were therefore ‘[o]fficers who work Monday to Friday and are not required to work Public Holidays’ for the purpose of cl 132.4 of the 2013 Agreement.
96 The Minister argued that the word ‘specifically’ in cl 132.3 equates to ‘expressly.’ But that is not the only ordinary meaning of ‘specifically.’
97 The Mirriam-Webster Dictionary provides two alternate meanings for ‘specifically’:
1 : in a specific manner : in a definite and exact way : with precision

As in

instructed them specifically on how to proceed
the people specifically named in the report
The reasons for the change were not specifically mentioned.
I specifically told her not to bother you.
Knead the bread dough for several minutes, or, more specifically, until it forms a smooth ball.

2 used to indicate the exact identity, purpose, or use of something

As in

The show is aimed specifically at a female audience.
specifically, the stores are lowering the height of store shelving, changing out signs, repainting some areas and … putting products next to each other that customers typically buy together.
—Jill Rick
98 The Cambridge Dictionary also provides two alternative meanings of ‘specifically’, which closely align with the Mirriam-Webster definitions:
1. For a particular reason, purpose etc
2. clearly, exactly or in detail.
99 The word ‘specifically’ can delimit the application of a thing, as opposed to it applying ‘generally’ or ‘vaguely’: News Corporation Ltd and Ors v National Companies and Securities Commission(1984) 1 FCR 64 at 77. The word ‘specifically’ is capable of different shades of meaning, taken from context. See for example Agencies for South West Accommodation Inc v Western Australian Municipal, Administrative, Clerical and Services Union of Employees & Ors [2024] WAIRC 353 at [52]-[59].
100 To read cl 132.3 harmoniously with clause 132.4, the provisions about annualised salary I have discussed, taken together must, amount to the agreement ‘specifically’ providing for an exception to the position whereby payment for work performed on all Public Holidays is included in an officer’s annualised salary. It does so ‘specifically’ not because it is explicitly specified and described, but because PROMF is a classification that has a particular or special property that distinguishes it from classifications that are required to work on public holidays. It has a specific or particular purpose and character.
101 The 2016 Agreement repeats the distinction between the components of annualised salary for officers who work Monday to Friday only and those that work shifts at cl 31.3 and cl 31.4:
31.3 The Annualised Salary for Officers working Monday to Friday only incorporates payment for ordinary hours of work.
31.4 The Annualised Salary for Officers working shift work incorporates the Monday to Friday rate for the Classification and a component in lieu of shift penalty payments, Public Holidays and Accrued Days Off. Where a total rate is used, individual component parts of penalties, allowances, and base rates should be identified.
102 This reinforces the intention to depart from the position under the Award, whereby penalty rates are incorporated in the annualised salary for all officers. The fact that the 2013 Agreement’s and each subsequent agreement’s definition of ‘annualised salary’ departs from the Award’s definition indicates that the parties intended the agreements to operate differently to the Award.
103 Otherwise, there are no changes in the relevant provisions in the agreements registered between 2016 and the 2020 Agreement which would indicate the position was intended to change from what it was under the 2013 Agreement.
104 There was one further change between the 2018 Agreement and the 2020 Agreement which the Minster says is significant. It is the removal of the word ‘only’ in cl 32.4: ‘[t]he Annualised Salary for Officers working Monday to Friday [only] incorporates payment for ordinary hours of work’.
105 The Minister submits the removal of ‘only’ changed or clarified what was intended by the clause, and that it demonstrates that the annualised salary may include payment for more than just the ordinary hours of work. The Minister says that whether that is intended must be found in other provisions of the 2020 Agreement.
106 I do not consider the removal of the word ‘only’ results in any different conclusion about the underlying intention of the 2020 Agreement’s annualised salary for PROMF. As the Minister concedes, the removal of the word on its own cannot have that effect. The effect must be found elsewhere.
107 The definition of Annualised Salary has, since 2013, consistently stipulated that the annualised salary for shift work includes the Monday to Friday rate for the Classification and a component in lieu of public holidays. Implicitly, the Monday to Friday rate for the classification does not include a component for public holidays.
108 In any event, if the parties intended to clarify what was or was not included in the annualised salary, removing the word ‘only’ was an ineffective way of going about it.
109 The underlying structure, scheme or intent of the 2020 Agreement is such that the annualised salary is not paid to PROMF in respect of work performed on public holidays. Accordingly, for such officers, public holidays are not part of their ‘rostered hours of work’ for the purpose of the ‘Overtime’ clause.
110 This history is a compelling indication that the annual salary for PROMF in the 2020 Agreement was not intended to compensate for those officers working on public holidays. The position for PROMF is the same as VSO Monday to Friday classifications.
111 This context is ultimately the best and most compelling indication of the underlying intention of the 2020 Agreement concerning the PROMF annual salary. I agree with the conclusion that the Industrial Magistrate reached in this regard. As the annual salary for PROMF is not intended to include a component for working public holidays, it follows that such officers are not required to work public holidays as part of their rostered hours.
112 However, this is not the case for all Monday to Friday rates of pay. Monday to Friday Prison Officer, First Class Officer, and Senior Officer classifications had historically been paid an annual salary which included a component for working public holidays.
113 This conclusion means that there is a difference between Principal Officers and other classifications not apparent on the words of the document itself. It would not be apparent to a lay reader of the 2020 Agreement that a PROMF is not required to work public holidays as part of their rostered hours, but a ‘Prison Officer Mon-Fri’ is. This is an unsatisfactory situation which I would urge the parties to address in the drafting of future agreements.
114 Ground 2, 3 and 6 of the appeal are not made out.
Ground 4: The Industrial Magistrate’s consideration of evidence of custom and practice
115 By this ground, the Minister alleges that the Industrial Magistrate erred in finding there was evidence that pointed to principal officers being entitled to paid days off for public holidays and that this should inform the meaning of the relevant clauses of the agreement.
116 The ground has two components. The first relates to a factual finding. The second relates to the application of the factual finding to the construction of the 2020 Agreement.
117 It is not clear from the ground itself what evidence is referred to. As is apparent from the discussion of the prior industrial instruments, the prior industrial instruments themselves constitute evidence that principal officers were not required to work public holidays as part of their rostered hours for which the annualised salary was paid. It was proper that this evidence be admitted as relevant context for the construction of the 2020 Agreement.
118 The Minister’s submissions suggest the ground is directed at his Honour’s finding that until August 2022, principal officers were entitled to paid days off for public holidays, or that there was a custom prior to the 2020 Agreement for PROMFs to be paid overtime for working public holidays. The Minister refers to [124] of his Honour’s reasons. No such findings are made in that paragraph.
119 However, at [125] the Industrial Magistrate says:
The better explanation is what the evidence points to. Principal officers would, as occurred with Ms Harvey in the period following her promotion to the role until August 2022, be entitled to paid days off for public holidays.
120 The paragraph follows from his Honour’s analysis of the 2013 Agreement. The ‘evidence’ the paragraph is referring to is the history of the industrial agreements.
121 Otherwise, at [169] the Industrial Magistrate notes:
On the contrary, it appears to have been understood and accepted industrial practice that principal officers at Karnet, would be able to, and did, access the entitlement under cl 136.1 to paid days off for public holidays.
122 This was part of his Honour’s reasons for rejecting a submission that the removal of the word ‘only’ in 2020 coincided with a change in practice: [167]. Although not identified by his Honour, it is likely drawn from Principal Officer Harvey’s statement, admitted by consent, which says that from when she commenced as a principal officer at Karnet in November 2020 she was ‘usually permitted to be away from work on public holidays’ and ‘continued to receive my ordinary pay’: Maureen Harvey Witness Statement at [10].
123 Principal Officer Harvey’s evidence in this regard was inadmissible on the question of the construction of the 2020 Agreement, because it was evidence of conduct that occurred after the 2020 Agreement was made (the first public holiday having occurred after the registration of the 2020 Agreement).
124 But that is not the use that the Industrial Magistrate made of the evidence. The evidence was not used to construe the 2020 Agreement, but rather to assess the veracity of the evidence the Minister relied on.
125 No error is established. I would dismiss Ground 4.
Ground 5: Did the Industrial Magistrate exercise arbitral instead of judicial functions?
126 As I understand this ground, it alleges that the Industrial Magistrate reasoned by reference to principles of industrial fairness rather than applying the rules of construction of industrial agreements. Again, the ground does not point to any particular reasoning said to be infected by alleged error. Nor do the Minister’s written submissions address what reasoning is the subject of this ground.
127 Ground 5 is not made out and I would dismiss it.
128 As I ultimately agree with the Industrial Magistrate’s construction of the 2020 Agreement, and in particular, his conclusion as to what constitutes ‘rostered hours of work’ for PROMF, I would dismiss the appeal as it concerns the Minister’s liability for the alleged contravention. This means that it is necessary to deal with the further grounds of appeal concerning penalty.
Part 2 – Penalty and remedies
The Penalty Decision
129 By the parties’ consent, the Industrial Magistrate decided the penalty on the papers.
130 His Honour set out what he considered to be the applicable maximum pecuniary penalty at [5] of the Penalty Decision:
The maximum pecuniary penalty for a breach of an industrial agreement in the case of a body corporate (which would include a government department) under s 83(4A) of the IR Act is a fine of $65,000. For cases involving a serious contravention by a body corporate, a maximum pecuniary penalty of $650,000 applies. (footnote omitted)
131 He then referred to the principles to be applied in determining penalty as set out in Western Australian Prison Officers Union of Workers v Minister for Corrective Services [2023] WAIRC 867; 103 WAIG 1878 (WAPOU Caution Decision) and Janine Marie Callan v Garth Douglas Smith [2021] WAIRC 00216; 101 WAIG 1155 (Callan v Smith): [8]-[17].
132 After setting out the parties’ respective submissions (which did not expressly address whether the maximum penalty was that for a body corporate under s 83(4A)(a) or for a natural person under s 83(4A)(b)), his Honour detailed each of the factors he considered were relevant to the breach, and why he considered the imposition of a penalty, rather than a caution alone, was appropriate.
133 In relation to the extent of the conduct and the circumstances in which the breach occurred, his Honour noted that the matter involved a single breach and quantum of $215.51 which was at the lower end of the range. However, he considered the contravening conduct to be more serious than in the WAPOU Caution Decision because it did not involve an error in the exercise of a discretion, but rather involved a deliberate choice about what the 2020 Agreement meant.
134 His Honour noted that the conduct was deliberate, that is, not the result of a mistake or inadvertence, but also took into account that the appellant chose to take a risk about the correctness of its interpretation, so that it was appropriate that a penalty be imposed: [51], [58].
135 As to the nature and extent of loss or damage, his Honour referred to Principal Officer Harvey being deprived of a paid day off on a public holiday and the entitlement to be paid overtime rates. He also referred to the need to bring enforcement proceedings, and the Union having incurred significant legal costs: [61]-[63].
136 Under the heading ‘Scale and size of the business’, the Industrial Magistrate took into account that the appellant is a ‘large and well-resourced government department’. He noted that there were other avenues open to resolve issues as to the interpretation including an application under s 46 of the IR Act to declare the true interpretation of the agreement’s provisions: [65]. He also considered the size of the business relevant to the need for the amount of any penalty to have a deterrent effect: [66].
137 His Honour noted that the appellant’s financial position was not such as to raise capacity to pay considerations: [67].
138 In relation to corrective action and cooperation, his Honour noted that there was no early admission, but the case did proceed efficiently because much of the material evidence was agreed or not disputed. His Honour referred to correspondence from the appellant’s Counsel which indicated the appellant had implemented the decision, which he assumed meant it had paid Prison Officer Harvey’s overtime: [69]. However, his Honour considered any mitigating effect of the corrective action was neutralised by the failure to show contrition: [71]-[72].
139 His Honour considered there was a need for specific deterrence in circumstances where the breach was deliberate: [77]. His Honour suggested the more appropriate approach for the appellant to have taken in addressing the interpretation issue was to bring proceedings under s 46 of the IR Act: [78]. He also noted that the penalty should not be so low as to not serve the general deterrent purpose of a penalty: [80].
140 Having regard to all of these factors, his Honour arrived at a penalty of $15,000 which he ordered be paid to the Union, in accordance with the principles set out in Milardovic v Vemco Services Pty Ltd (No 2) [2016] FCA 244; (2016) 242 FCR 492 and United Voice WA v Director General, Department of Education [2012] WAIRC 00778; (2012) 92 WAIG 1655.
Grounds of appeal
141 The first of the Minister’s penalty grounds, Ground 7, alleges that the Industrial Magistrate erred in determining the maximum penalty that applied to the contravention was the penalty for a body corporate, when the Minister is not a body corporate under the Prisons Act 1981 (WA) (Prisons Act).
142 The second penalty ground, Ground 8, alleges that the penalty was manifestly excessive where:
(a) The penalty was incorrectly assessed by His Honour as if the Appellant was aware of, or uncaring of the possibility, that not paying Principal Officer Harvey overtime may breach the Agreement when this was not established.
(b) His Honour had insufficient regard to the provisions under consideration being in dispute, ambiguous and not having been the subject of previous consideration.
(c) No account was given to the Appellant’s interpretation being one that could be reasonably taken and there was no evidence that it was not honestly held by the Appellant.
(d) His Honour erred in finding the Appellant embarked on a deliberate course by choosing “a different interpretation” than previously applied when the evidence was prisons had not consistently applied the Appellant’s interpretation and not paying Ms Harvey was the result of seeking to achieve a consistency of payment across all prisons.
(e) His Honour had no regard to the obligation imposed on the Respondent to only pay entitlements to employees to which they are entitled under the industrial instruments that apply to their employment.
(f) It was unreasonable to find the failure of the Appellant to seek an interpretation of the provisions in dispute was a circumstance of aggravation.
(g) The penalty was assessed under section 83(4A)(a).
(h) A caution was the appropriate penalty in the circumstances if a breach occurred.
Nature of the penalty appeals
143 The Industrial Magistrate’s decision in relation to the quantum of penalty is a discretionary one. As a discretionary decision, the well‑established principles that apply are those stated in House v The King [1936] HCA 40; (1936) 55 CLR 499 (House) at 504-505:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
144 Ground 7 involves the first type of error identified in House, that is, specific error, and ground 8 involves the second type.
145 In Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181 (Reckitt Benckiser), the Full Court of the Federal Court applied House and later authority and discussed the nature of an appeal with respect to the imposition of a civil penalty at [44]–[56]. In relation to the second type of error the Full Court said at [56]:
A finding of manifest inadequacy (or excess) can be supported by reference to specific errors. In that event, even if the asserted specific error is not established as a separate basis upon which the appeal must be allowed, it may nonetheless help to explain the overall result said to be erroneous. While Dinsdale [v The Queen [2000] HCA 54; (2000) 202 CLR 321] makes it clear that the appeal court does not have to attribute identified specific error in the reasoning of the sentencing judge, it is not precluded from doing so. This is especially so if a combination of such reasoning is asserted to produce or contribute to a manifestly inadequate (or excessive) result. It follows that the conclusion reached by this Court about grounds 1 to 7 may properly inform and support the conclusion properly to be reached about ground 8, whether or not our conclusions about any one of grounds 1 to 7 are themselves sufficient to require the primary judge’s order as to penalty to be set aside.
146 To assess whether a primary judge’s penalty is, in all the circumstances, manifestly inadequate or manifestly excessive, the contravention should be viewed in light of the maximum penalty as a yardstick. But care must be taken to ensure the maximum penalty is not applied mechanically, instead of being treated as one of a number of relevant factors, albeit an important one: Reckitt Benckiser at [155]–[156]; Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450 (Pattinson) at [53].
147 The purpose of a civil penalty is primarily, if not wholly, protective in promoting the public interest in compliance: Callan v Smith at [28]-[30]. Any penalty imposed should be sufficient to serve as both a specific and a general deterrent: Callan v Smith at [71].
Ground 7: Does the body corporate penalty regime apply?
148 The Minister says that by treating the Minister as a body corporate, the Industrial Magistrate erred because:
a. departments do not have a corporate personality;
b. the respondent to the claim was the Minister personally not the Department; and
c. the Minister is not constituted as a body corporate under the Prisons Act.
149 Contravention proceedings can be taken under s 83(1) of the IR Act against ‘a person’. Person is defined in s 5 of the Interpretation Act to include ‘a public body, company, or association or body of persons, corporate or unincorporate’.
150 The IR Act contains two alternative penalty regimes, one for ‘individuals’, and one for ‘body corporates’. Section 83(4A) says:
The pecuniary penalty may be an amount not exceeding —
(a) in the case of a body corporate —
(i) if the contravention is a serious contravention — $650 000; or
(ii) if the contravention is not a serious contravention — $65 000;
and
(b) in the case of an individual —
(i) if the contravention is a serious contravention — $130 000; or
(ii) if the contravention is not a serious contravention — $13 000.
151 The term ‘body corporate’ also appears in s 3(2)(c), s 60(1), s 83E, s 83EA(3), s 84T, and s 97UL(2) of the IR Act.
152 The IR Act does not define what is a ‘body corporate’. Nor does it define ‘individual’. But it must follow that a person, whether a public body or any other type of person, must fall within one of the two available categories. It cannot have been intended that contravention proceedings be taken against a person, but there be no sanction or penalty on the basis that the person is neither an individual nor a body corporate.
153 I note that the Industrial Magistrate did not make a finding that the Minister was a body corporate. Rather, his Honour characterised the relevant ‘government department’ as a body corporate.
154 I agree with the Minister that the Minister is not a body corporate. Sarah Hinchliffe, in Halsbury’s Laws of Australia, 120 – Corporations at [120.10] says:
[120.10] Most corporations are associations of more than one individual. However, English and Australian law recognise a kind of corporation called the corporation sole. Thus corporations may be divided into two basic categories: corporations sole and corporations aggregate.
…
The corporation sole consists of one person only and that person’s successors, in some particular office, station or position, who are incorporated by law. Such incorporation is meant to give those individuals who hold such an office or station some legal capacities and advantages, particularly that of perpetuity, which they could not have in their capacity as natural persons... (footnotes omitted)
155 The author refers to Hubbard Association of Scientologists International v The Attorney-General for the State of Victoria [1976] VR 119.
156 This case involved a libel claim. The plaintiff claimed the Attorney-General for the State of Victoria was a corporation sole with perpetual succession and that the liability attaching to the corporation, at the time of publication of the libel, would continue to attach to the corporation at the time of the commencement of the action notwithstanding the change in personnel of the incumbent.
157 The Supreme Court of Victoria rejected this contention. In the lead judgment, Gowans J referred extensively to various authorities and commentaries about the origins and nature of a corporation sole. At 124, his Honour notes:
The absence of any statute or royal charter creating the Attorney-General for the State of Victoria such a corporation sole may be the subject of judicial notice. In the present case it is not contended that there was any such statute or charter creating the Attorney-General for this State a corporation sole, and it may be taken that there was no such statute or charter. But whether in relation to the office of Attorney-General a corporation sole was created at common law or by prescription is a more elusive subject. In view of the contention put forward by the plaintiff that the Attorney-General was a corporation sole it might have been expected that some material would be adduced in its support, or at all events suggested as available. But no such material was forthcoming or suggested to be available. The argument has been that the functions performed by the Attorney-General are such as to make him an appropriate candidate for recognition as a corporation sole. But the mere existence of functions in a public officer which could appropriately be entrusted to a corporation sole is not sufficient to justify the attribution to him of that status. For a public official to be recognized as having the status of a corporation sole at common law there must be some implication arising from long recognition of its attribute of permanent succession.
158 Scientologists was cited by Buss JA, with whom Wheeler JA and Pullin JA agreed in Re Minister for Resources; Ex Parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403 at [321] where his Honour stated that Ministers of the Crown are not common law corporations sole, but noted ‘they are frequently created corporations sole under statute’. President of the Court of Appeal McLure made the same observation in Wright Prospecting Pty Ltd v Hancock Prospecting [2016] WASCA 50; (2016) 49 WAR 476 at [42].
159 The Prisons Act does not create the Minister as a corporation sole. It contains no express provision designating the Minister to be, or constituting the Minister, as a body corporate.
160 However, the fact that the Minister is not themself a body corporate is not the end of the matter.
161 Section 13(1) of the Prisons Act under the heading ‘Engagement of prison officers’ provides:
The Minister may engage prison officers as employees and, subject to any industrial award or agreement that is applicable in relation to a particular case or class of cases, persons so engaged shall be employed on such terms and conditions as the Minister, on the recommendation of the Public Sector Commissioner, determines.
162 The Minister employs prison officers in their capacity as the holder of a principal executive office of the government under s 43(2) of the Constitution Acts Amendment Act 1899 (WA).
163 Section 3 of the Public Sector Management Act 1994 (WA) (PSM Act) defines non-SES organisation as:
…an entity which consists of —
(a) a body, whether corporate or unincorporate, or the holder of an office, post or position, being a body or office, post or position that is established or continued for a public purpose under a written law; and
(b) persons employed by or for the purposes of that body or holder under that written law or another written law,
and which neither is nor includes —
(c) an SES organisation; or
(d) an entity specified in column 2 of Schedule 1
164 The Minister is a non-SES organisation as the Minister is the holder of an office, post or position established for a public purpose under a written law. Accordingly, the Minister is an ‘employing authority’ under s 5 of the PSM Act and a ‘public authority’ under s 7 of the IR Act.
165 The Minister’s acts are binding on the State because the Minister engages prison officers as an employing authority or agent of the State: Patole v Child & Adolescent Health Service [2024] WASCA 126 at [15] to [16].
166 In Coochey v Commonwealth [2005] FCA 1165; (2005) 149 FCR 321 Madgwick J considered the meaning of ‘body corporate’ as it appeared in the penalty provisions of the Workplace Relations Act 1996 (Cth), and its application to the Minister of Defence and the Minister of State for Industrial Relations as the employing authority on behalf of the Commonwealth of Australia as the employer of a public servant. The dichotomy in the Workplace Relations Act was between a ‘body corporate’ and ‘other cases’, rather than body corporate and ‘individual.’
167 Madgwick J observed at [56] that the legislative policy rationale for the distinction between bodies corporate and others was to limit the exposure of individual people to large penalties. His Honour rejected an argument that a body politic, which the Commonwealth was, could not also be a body corporate; they are not mutually exclusive categories: [67]. His Honour recognised that in order for a body politic to be a body corporate, it must have ‘the necessary corporate character’. In his Honour’s opinion, the Commonwealth has such a corporate character: at [67].
168 In the same way, the State as a body politic has corporate character and can properly be characterised as a body corporate. Because the Minister’s actions which constitute the contravention were performed in the Minister’s capacity as an agent for the State, in my view it is appropriate to treat the matter as a “case of a body corporate” under s 83(4A).
169 Accordingly, the Industrial Magistrate was not in error in considering that the maximum penalty in s 83(4A)(a) applied in this case. This ground should be dismissed.
Ground 8: Was the penalty manifestly excessive?
170 In support of its grounds appealing the penalty as ‘manifestly excessive’, the Minister says:
68. His Honour stated the “issue to be decided in this matter is whether principal officers under the 2020 Agreement are entitled to be paid at overtime rates on days they are rostered to work on public holidays”: [6], AB 123, Reasons for Decision 28 August 2023. His Honour’s construction of the relevant provisions against the Appellant was on a basis submitted by neither party. In those circumstances a finding that the breach was deliberate and a matter of aggravation because the Appellant took the risk that his interpretation was incorrect was unreasonable: AB 161 – 162; [58] – [60].
69. No evidence was led that the interpretation of the Appellant was not one honestly held nor was there a finding that it could not be reasonably held. In circumstances where the claim is substantially one brought to obtain an interpretation of disputed provisions an employer should not be under the threat of censure and a significant penalty, where there is genuine reasonable dispute as to the entitlement, unless it is paid until the employer obtains the Commission’s interpretation of the clauses in dispute under section 46 of the Industrial Relations Act. The Appellant had a duty to pay Ms Harvey only in accordance with the 2020 Agreement: Director General Department of Justice v Civil Service Association 2004 WAIRC 13765 at [40] – [42]. Discharging that duty required a position to be taken by the Appellant regarding the meaning of the disputed provisions.
70. In the circumstances a caution, if any penalty at all, was appropriate.
171 The Minister argued that the Industrial Magistrate incorrectly approached the assessment of penalty in circumstances where the real issue was the meaning of the industrial agreement, corrective services is taxpayer funded and the Minister is obliged not to make payments to employees exceeding their lawful entitlements. The Minister also challenges the Industrial Magistrate’s finding that the Minister made a deliberate choice to change its practice from allowing PROMFs to take public holidays off, to requiring public holidays to be worked without additional pay.
172 The Minister’s submissions at first instance about this was that:
Where there is reasonable dispute, upon which there is no authority, between the parties as to the meaning of ambiguous relevant provisions relied upon to bring a claim, the position taken by the Respondent is reasonably arguable, and genuinely held, it would be unreasonable to require the Respondent to concede to the claim or otherwise be open to the risk of a pecuniary penalty under section 83(4) of the Industrial Relations Act. This particularly so in the context of the Full Bench’s decision in The Director General of the Department of Justice v The Civil Service Association 2004 WAIRC 13765 in which it held moneys can only be paid out of consolidated revenue by a Government employer to employees in accordance with the applicable industrial instruments that regulate the employment: [41] - [45].
173 The IR Act contemplates that a caution might be imposed rather than a penalty, in aid of the object of ensuring compliance with industrial instruments: s 83(4). In the WAPOU Caution Decision at [37], Industrial Magistrate Kucera determined that a caution was appropriate in circumstances where there was utility in the Court interpretating an industrial agreement, particularly where the terms of the instrument had not earlier been considered.
174 However, there are two factors which distinguish this matter from the WAPOU Caution Decision:
a. In the WAPOU Caution Decision, the relevant agreement under which the contravention occurred had since been superseded and the ambiguity resolved, such that there was no risk of a future breach or need for specific deterrence in relation to breaches of the particular type there considered.
b. The maximum penalty that could be applied when the WAPOU Caution Decision was decided was so low that it did not provide any practical deterrent effect anyway. The legislation has since been amended to increase the penalties: Industrial Relations Legislation Amendment Act 2021 No 30 of 2021 (WA). Those amendments indicate that the Parliament intended that pecuniary penalties have an enhanced role to play in compliance and enforcement. It effectively means that a caution is now a more exceptional exercise of the powers under s 83(4) of the IR Act.
175 The Minister accepts that the contravention was deliberate, in the sense that it believed that Principal Officer Harvey was only entitled to be paid her annualised salary rate for work performed on a public holiday, and it paid her that rate accordingly.
176 However, the Minister also says that it is relevant that the underpayment, while deliberate, was the result of an interpretation of the 2020 Agreement which was ambiguous. Its interpretation was not unreasonable, and the correct interpretation as the Industrial Magistrate and I have found it, had not been authoritatively decided.
177 The Minister’s adoption of a reasonably arguable interpretation does not mean there should be no penalty: Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480 (Hail Creek Coal) at [15]. An honest and reasonable but erroneous construction of an industrial instrument may be a factor relevant to the quantum of penalty. But where a particular construction is far from certain, and the construction has been contested, an employer can be characterised as having ‘taken the odds’: Halls Creek Coal at [17] and United Workers’ Union v Compass Group Healthcare Hospitality Services Pty Ltd & Anor (No 2) [2024] SAET 49 at [111] and [113].
178 In her witness statement, Principal Officer Harvey said that after her appointment as a PROMF until April 2022 she was ‘usually’ permitted to be away from work on public holidays, and to receive her ordinary pay when she did not work. She does not say how her pay was treated on the days when she did work on public holidays.
179 She said that in August 2022 she was told by the Acting Assistant Superintendent Operations that she would, going forward, be expected to work public holidays ‘as part of my ordinary hours of work’.
180 The Acting Superintendent Karnet said in his witness statement that from his experience both as a Union delegate and a member of the executive team, it had never been his understanding that PROMFs are entitled to be absent from work on public holidays.
181 The Superintendent issued a Guidance Note consistent with the Acting Superintendent’s view on 28 September 2022, a few days after the relevant public holiday and the day before the contravening conduct. The Guidance Note was issued because the Department did not have a consistent approach in relation to work on public holidays: Contravention Decision at [25].
182 The Industrial Magistrate fairly observed that the Guidance Note was issued in circumstances where some PROMFs were getting public holidays as paid days off and some were not: Penalty Decision at [55]. He also fairly concluded that the issue of the Guidance Note represented the adoption of a ‘new universal approach’ and a ‘deliberate choice’ as to the interpretation: Penalty Decision at [56]-[57].
183 The Industrial Magistrate considered the appellant ought to have brought s 46 proceedings for an interpretation of the 2020 Agreement rather than adopting a particular interpretation of the 2020 Agreement and ‘taking the risk’ of its interpretation being wrong.
184 The Industrial Magistrate’s conclusions were clearly open on the evidence. His approach to this factor was consistent with the authorities I have referred to.
185 In my opinion, the penalty imposed was not manifestly excessive. I would dismiss this ground of appeal.
Part 3 – Notice of Contention/Cross Appeal
Ground 1: Costs
186 Ground 1 of the Notice of Contention is:
His Honour erred in law by determining that legal costs were not recoverable despite His Honour appearing to deal with the matter as an “underpayment” matter pursuant to s 83A of the Industrial Relations Act 1979 (IR Act) (as well as dealing with the matter as an “enforcement” matter pursuant to s 83 IR Act).
Particulars
· His Honour at [63] of the Decision found that the Union incurred significant legal costs but determined those legal costs are not recoverable.
· Section 83A(1) IR Act says that where proceedings are brought under s 83(1) and it “appears” to the Industrial Magistrate that an employee has been underpaid under an entitlement provision, the Industrial Magistrate “must” order payment of the underpaid amount pursuant to s 83A.
· It is clear that the Industrial Magistrate elected to exercise his statutory discretion and dealt with the matter as an underpayment matter, being an underpayment matter under s 83A: See [45], [85], [88], [92] of the Decision.
· Section 83C(1) IR Act says that an order made under 83A attracts costs (without the limitations imposed by s 83C(2)).
187 The Union asks the Full Bench to confirm the orders made at first instance, with variations or amendments to:
a. order the Minister to pay the Union’s costs; and
b. reflect that the underpayment amount is properly ordered to be paid under s 83A(1); and
c. order the Minister to pay interest on the amount underpaid pursuant to reg 12(3) of the Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA).
188 The relief sought in the Originating Claim was:
a) A finding that the Respondent has contravened clauses 22.1 and 33.3 of the Industrial Agreement.
b) An order pursuant to section 83 of the IR Act that the Respondent pay the amount of the underpayments to the member.
c) An order pursuant to section 83(4) of the IR Act that the Respondent pay a penalty in respect of the contravention of the Industrial Agreement.
d) Such further orders as the Court deems appropriate.
189 The Union did not pursue a claim for costs, interest or orders under s 83A in its written submissions on penalty at first instance. There is a mention in its submissions under the heading ‘Nature and extent of any loss’ of the fact that the Union had incurred legal fees prosecuting the claim. That is, costs incurred was raised as a factor relevant to penalty. The Union made no argument at first instance that it was entitled to an order for payment of its legal costs, nor for payment of interest, nor for orders under s 83A. It had the opportunity to do so but did not put these matters forward.
190 The Union’s only argument in support of this ground is that it was open to the Industrial Magistrate to make the orders sought, because paragraph 11(d) generally sought orders ‘deemed appropriate’ and ‘the Union should have been awarded costs’.
191 Had the Union raised these matters at first instance, the Minister could have made submissions and put on evidence in response. Because the Union did not, the Minister was denied this opportunity. The Union is bound by its case at first instance and cannot now raise these matters: s 49(4)(a) of the IR Act; Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68 at 71.
192 There is no merit to this ground. I would dismiss it.
Ground 2: Was the finding of corrective action a specific error?
193 The Union’s second ground is:
His Honour erred in law when determining at [82], for reasons outlined in His Honour’s “preceding paragraphs”, that a fine of $15,000 is the most appropriate disposition in the case.
Particulars
· His Honour at [69] made an erroneous assumption based on correspondence dated 31 January 2024 that the Minister had taken corrective action, had implemented the Decision, and paid Ms Harvey’s overtime.
· This erroneous assumption, or any assumption about corrective action, was not available to His Honour to make because:
i. The 31 January 2024 correspondence was not part of the hearing in the case.
ii. The Appellant Union was not afforded an opportunity to respond to that correspondence of 31 January 2024 and was therefore denied procedural fairness in that regard.
iii. There was no evidence in the hearing that the Minister had implemented the Decision and paid Ms Harvey’s overtime.
· At [69] His Honour fell into error when considering mitigation of penalty based on the erroneous assumption, and it was because of that erroneous assumption that His Honour imposed only $15,000.
· Had His Honour applied the factors which inform an assessment of an appropriate civil penalty (as His Honour did at [12], [13], [16] and [17] of the Decision) on the basis that there was no corrective action by the Respondent, His Honour would have determined a fine of more than $15,000 to be the most appropriate disposition in the case.
194 I understand this ground to raise error of the first type in House, that is, specific error. It is not alleged that the penalty was manifestly inadequate or unjust in its amount.
195 In cases of specific error, the error must have either caused or materially contributed to the result. An error which has not in some material way affected the outcome will ordinarily result in the appeal court declining to intervene in the result: Reckitt Benckiser at [53].
196 To succeed on this ground of appeal, the Union must not only establish the asserted error, but also that the error was material to the penalty imposed.
197 Even if specific error is established, it could not be regarded as being material to the result. At [72], the Industrial Magistrate said that the Minister’s lack of contrition cancelled out any mitigating effect of corrective action. In any event, there was no evidence that corrective action had not been taken. The factor before the Industrial Magistrate could at best have been neutral. The Industrial Magistrate would have committed error had he approached the penalty on the basis there had been no corrective action as the Union urges.
198 This ground of appeal should be dismissed.
Disposition
199 I would:
1. Dismiss the appeal
2. Dismiss the Union’s notice of contention and its appeal in the matter FBA 13 of 2024.
3. Affirm the Industrial Magistrate’s Orders made on 9 April 2024.

EMMANUEL C AND TSANG C:
200 We have had the benefit of reading the Senior Commissioner’s draft reasons for decision. We broadly agree with the Senior Commissioner’s reasons regarding the background, summary of grounds of appeal, nature of the appeal and nature of penalty appeals at [1]–[13], [15], [140]–[144]. Furthermore, we adopt the Senior Commissioner’s numbering of the appeal grounds at [35]–[40], [141]–[142], [186] and [193].
201 We adopt and apply the approach to the interpretation of industrial agreements as recently adopted and applied by the Full Bench in Minister for Corrective Services v Western Australian Prison Officers’ Union of Workers [2024] WAIRC 00758; (2024) 104 WAIG 1843 [20]:
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: [Geo] 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 wellknown. 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].
Ground 1
202 We respectfully consider that the learned Industrial Magistrate erred in law in finding that there was ambiguity in the 2020 Agreement regarding Principal Officer Harvey’s entitlement to a paid day off on 26 September 2022, warranting recourse to the surrounding circumstances.
203 We agree with the Senior Commissioner’s approach, which is to consider the 2020 Agreement as a whole to determine the objective intention behind the Annualised Salary, including whether it is intended to compensate PROMF officers for work performed on public holidays.
204 We respectfully disagree with the Senior Commissioner’s reasoning on several points. Specifically, we disagree with her interpretation:
a. At [55], that the express reference to the Annualised Salary for officers working shift work as including a component in lieu of Public Holidays, might indicate that the Annualised Salary does not include a component for public holidays for officers who do not work shift work.
b. At [57], that the omission of a classification or particular rate of pay for ‘MonFri plus Public Holidays’ for positions other than VSO might indicate that the Annualised Salary does not include a component for public holidays where ‘MonFri’ only is specified.
c. At [61], that the omission of a reference to the inclusion of public holidays other than Easter Sunday for officers working Monday to Friday in cl 32.4 might point to an intention that the Annualised Salary is not calculated and paid for work on public holidays.
205 Applying the principles set out at [201] above, we have construed the ordinary meaning of the words used in the 2020 Agreement, read as a whole and in accordance with its industrial context and purpose. We disagree with the learned Industrial Magistrate’s finding of ambiguity in the 2020 Agreement for the following reasons.
206 It is not in dispute that the King’s Birthday public holiday was recognised in Western Australia on 26 September 2022, and that this day is defined as a ‘Public Holiday’ under cl 7 of the 2020 Agreement:
Public Holiday means a day specified in clause 136 – Public Holidays.
207 Clause 136.1 specifies the days that are recognised as a Public Holiday in the 2020 Agreement, and includes the King’s Birthday (emphasis added):
For the purposes of this Agreement the following days, or the days observed in lieu shall, be recognised as Public Holidays: New Year’s Day, Australia Day, Good Friday, Easter Monday, Anzac Day, Labour Day, Western Australia Day, Sovereign’s Birthday, Christmas Day and Boxing Day.
208 Principal Officer Harvey worked on this Public Holiday.
209 We agree with the Minister that cls 136.3 and 136.4 mean that the starting point is that the Annualised Salary compensates an officer in Principal Officer Harvey’s position for the work performed on this Public Holiday. Clause 136.3 states that payment for their work on this Public Holiday is included in their Annualised Salary ‘except where specifically provided for in this Agreement’:
Except where specifically provided for in this Agreement, payment for work performed on all Public Holidays is included in an Officer’s Annualised Salary.
210 In cl 136.3, the word ‘specifically’ is an adverb modifying the word ‘provided’. It is trite to say that a matter is ‘provided for in’ an industrial agreement via a provision of the agreement, and a provision of the agreement is a provision in the agreement. Nevertheless, cl 136.3 explicitly states that the provision must be in the 2020 Agreement: ‘except where specifically provided for in this Agreement’.
211 The Macquarie Dictionary defines ‘specific’ as including:
1. having a special application, bearing, or reference; specifying, explicit, or definite: specific mention.
2. specified, precise, or particular: a specific sum of money.
3. peculiar or proper to something, as qualities, characteristics, effects, etc.
4. of a special or particular kind.
212 Applying the ordinary meaning of ‘specific’ to cl 136.3, it is clear that Principal Officer Harvey would only be entitled to payment in addition to her Annualised Salary for the work performed on 26 September 2022 if there was a specific provision in the 2020 Agreement that provided for this.
213 There is no specific provision in the 2020 Agreement that provides for payment for the work performed on this Public Holiday to not be included in her Annualised Salary.
214 Similarly, there is no specific provision in the 2020 Agreement that provides for Principal Officer Harvey to receive overtime pay for the work performed on this Public Holiday.
215 There is no specific provision in the 2020 Agreement that provides for an officer in Principal Officer Harvey’s position:
a. To be absent from work on Public Holidays.
b. To be paid penalty rates for work performed on Public Holidays.
216 The interpretation of the words ‘except where specifically provided for in this Agreement’ as requiring another provision of the 2020 Agreement providing to the contrary, is wholly consistent with the other instance in which the words are used in the 2020 Agreement in cl 8.3:
The parties to this Agreement undertake that, for the term of the Agreement, there will be no further claims on matters contained in the Agreement except where specifically provided for in this Agreement.
217 Industrial agreements are the product of negotiations between the parties involved. In our view, omissions or silences on specific matters typically reflect deliberate choices made during the bargaining process.
218 Applying the principles set out at [201] above, and for the reasons in [210]–‍[217], we agree with counsel for the Minister that in the context of cl 136.3 ‘specifically’ means ‘expressly’ provided for in the 2020 Agreement.
219 Furthermore, the following matters support the position that when Principal Officer Harvey worked on 26 September 2022, payment for the hours she worked was included in her Annualised Salary.
220 First, while counsel for the Union argued that Principal Officer Harvey was working in excess of her rostered hours of work on 26 September 2022 in accordance with the cl 7 subparagraph (c) definition of ‘Overtime’ which qualified her for overtime pay under cl 22.1, he conceded that she worked her ordinary hours of work on that day (ts 65–66).
221 Second, the following provisions of the 2020 Agreement support the position that when Principal Officer Harvey worked on 26 September 2022, she was working ordinary hours, and that payment for those hours was included in her Annualised Salary:
a. Clause 19.1 states that, as a fulltime employee, Principal Officer Harvey’s ordinary hours of work are 40 hours per week.
b. Clause 19.6 states that, as an officer not engaged on a casual basis or at a Work Camp, Principal Officer Harvey’s ordinary hours of work are to be worked in continuous shifts of 8hours, 10hours, or 12hours.
c. Clause 7’s definition of ‘Annualised Salary’ that, as Principal Officer Harvey was not working shift work, meaning only the first sentence of this definition applies, as a result her Annualised Salary is the salary rate applicable to her classification, as set out in Schedule A – Annualised Salaries.
d. Schedule A – Annualised Salaries, provides for the following three classifications for a Principal Officer:

Rate of Pay on and from 11 June 2020
Rate of Pay on and from 11 June 2021

Annualised Salary ($)
Fortnightly Annualised Rate of Pay ($)
Hourly Annualised Rate of Pay ($)
Annualised Salary ($)
Fortnightly Annualised Rate of Pay ($)
Hourly Annualised Rate of Pay ($)
Principal Officer (MonFri)
1st Year
109,296
4,190.26
52.37
110,300
4,228.75
52.85
2nd Year
111,421
4,271.73
53.39
112,425
4,310.22
53.87
Thereafter
113,588
4,354.81
54.43
114,592
4,393.30
54.91
Principal Officer (Alternate Weekends 10 Hour)
1st Year
130,504
5,003.34
62.54
131,702
5,049.27
63.11
2nd Year
133,041
5,100.61
63.75
134,240
5,146.58
64.33
Thereafter
135,629
5,199.83
64.99
136,827
5,245.76
65.57
Principal Officer (Alternate Weekends 12 Hour)
1st Year
135,975
5,213.09
65.16
137,224
5,260.98
65.76
2nd Year
138,619
5,314.46
66.43
139,868
5,362.35
67.02
Thereafter
141,315
5,417.82
67.72
142,564
5,465.71
68.32
e. Schedule A – Annualised Salaries does not provide for any officer, including Principal Officers, Prison Officers, Transport Drivers, or Drug Detection Officers, to be classified and receive an Annualised Salary as ‘MonFri plus Public Holidays’, except for Level 2, Level 3 and Level 4 VSOs. This means that only Level 2, Level 3 and Level 4 VSOs receive a rate of pay that is greater than the rate of pay for the ‘MonFri’ salary for working Public Holidays. Whereas no other officers, including Level 1 and Level 5 VSOs, have a ‘plus Public Holidays’ classification.
f. Clause 136.4 only applies to officers ‘who work Monday to Friday and are not required to work Public Holidays’, meaning they will not receive the Public Holiday portion in their Annualised Salary. As outlined in [221(e)] above, cl 136.4 only applies to Level 2, Level 3, and Level 4 VSOs. This means cl 136.4 does not apply to Principal Officer Harvey.
g. By extension, officers other than the Level 2, Level 3 and Level 4 VSOs at [221(e)] above, who work Monday to Friday, ‘are required to work Public Holidays’ and ‘receive the Public Holiday portion in their Annualised Salary’. Such interpretation of cl 136.4 would be consistent with cl 136.3 that the work performed by such officers is included in their Annualised Salary.
h. Clause 32.4 states that, as an officer working Monday to Friday, Principal Officer Harvey’s Annualised Salary ‘incorporates payment for ordinary hours of work and Easter Sunday’. Clause 136.1 (at [207] above), does not include Easter Sunday. Therefore, it would be consistent to read the reference to ‘ordinary hours of work’ in cl 32.4 as including the Public Holidays listed in cl 136.1.
i. This is consistent with cl 21.1, which states that as Principal Officer Harvey was not an officer employed on a parttime basis or undertaking ELTP, she is required to work reasonable overtime, which is ‘in addition to [her] ordinary hours of work’.
222 When construing the 2020 Agreement as a whole, we consider our construction ensures that the ‘various parts’ of the 2020 Agreement are harmonious, in accordance with the principles outlined at [201] above.
223 We would uphold Ground 1.
Ground 2
224 We respectfully consider that the learned Industrial Magistrate erred in law in finding that Principal Officer Harvey was entitled to a paid day off on 26 September 2022, and consequently, was entitled to be paid overtime rates for the work performed on that day.
225 At first instance, the parties filed Agreed Facts which relevantly states (emphasis added):
2. … Pursuant to her Contract, Ms Harvey worked regular 8hour rostered shifts from Monday to Friday each week …
4. Under the terms of her Contract, Ms Harvey was paid an annualised salary according to her salary classification and her incremental level which are referred to in Schedule A of the 2020 Agreement.
5. At all material times, Ms Harvey’s salary classification as referred to in Schedule A of the 2020 Agreement was Principal Officer (MondayFriday) (PROMF).
6. Ms Harvey was rostered to work an 8hour shift at Karnet Prison [on] Monday, 26 September 2022 in accordance with the roster …
9. Ms Harvey attended Karnet Prison and she performed her rostered shift on 26 September 2022. …
226 At the appeal hearing, counsel for the Union argued that the agreed fact that Principal Officer Harvey ‘performed her rostered shift on 26 September 2022’ should be understood as her having been rostered to work her ordinary hours of work on that day, and that she had worked as required by the roster, but the hours worked were not her rostered hours as they were in excess of her rostered hours of work (ts 65–‍66).
227 Contrary to this submission, we find that on 26 September 2022, Principal Officer Harvey worked her rostered hours of work for the following reasons.
228 We agree with [78]–[79] of the Senior Commissioner’s reasons in relation to the nature of correctional facilities.
229 Furthermore, we note that the context of the 2020 Agreement as an industrial agreement applying to officers working in correctional facilities, underpins the interpretation of cl 136.3: Western Australian Prison Officers’ Union of Workers v Minister for Corrective Services [2024] WAIRC 00227; (2024) 104 WAIG 623 [31] (emphasis added):
Context is also important in construing the terms of an industrial instrument. The terms of the [2020 Agreement] were recently considered by the Full Bench in [Western Australian Prison Officers’ Union of Workers v Minister for Corrective Services [2024] WAIRC 00139]. In that matter, which involved an appeal from a decision of the Industrial Magistrates Court in relation to an alleged failure to comply with cl 138 of the Agreement regarding purchased annual leave, the Full Bench made some observations about the contextual operation of the Agreement and said at [66]–‍[69]:
…
[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. …
230 Principal Officer Harvey was engaged to work 120 ordinary hours over three weeks (cl 19.1).
231 On 26 September 2022, Principal Officer Harvey was rostered to work one-fifth of her weekly ordinary hours of 40hours a week, namely an 8hour shift.
232 Accordingly, and for the reasons outlined in relation to Ground 1 above, when Principal Officer Harvey worked the 8hour shift on 26 September 2022, she was working both her ordinary hours and rostered hours of work.
233 This finding is wholly consistent with the following provisions of the 2020 Agreement:
a. Clause 19.1, stating that the ordinary hours of work of a fulltime officer are 40hours per week.
b. Clause 19.6, stating that the ordinary hours of work are to be worked in continuous shifts of 8hours, 10hours, or 12hours, except where the officer is engaged as a casual or at a Work Camp.
c. Clauses 38.1, 44.1 and 46.1, referencing ‘8 hour rostered shifts’, ‘10 hour rostered shifts’ and ‘12 hour rostered shifts’, as synonymous with ordinary hours of 8hour, 10hour, and 12hour shifts.
d. Clauses 27–‍29 concerning roster cycles, roster posting, and roster alterations, and are consistent with the requirement for a twoweek Roster Cycle for rosters consisting of 8hour shifts (cl 27.1(a)), as well as the requirement for prior agreement between the Union and the Employer on the roster before posting it prior to close of business on a Pay Day to cover the upcoming Roster Period (cls 28.2 and 28.3).
234 Consequently, on 26 September 2022, Principal Officer Harvey was working her rostered hours of work. Therefore, she was not directed to work ‘in excess of [her] rostered hours of work’ on that day in accordance with the cl 7 sub-paragraph (c) definition of ‘Overtime’. Since she was not working overtime, she was not entitled to be paid the overtime rate of time and a half of her Hourly Annualised Rate of Pay in accordance with cl 22.1 of the 2020 Agreement.
235 We would uphold Ground 2.
Grounds 3, 4, 5, 6, 7 and 8
236 Given our conclusions about Grounds 1 and 2, it becomes unnecessary for us to consider Grounds 3, 4, 5, 6, 7 and 8.
237 In relation to Ground 7, we note that Patole was decided following the hearing in this matter. We did not have the benefit of the parties’ submissions regarding the potential impact of that decision on whether the body corporate penalty regime would apply. We think consideration of this question is best left to another occasion, when the Commission can consider the issue with the benefit of full argument.
Cross appeal: Grounds 1 and 2
238 We agree with the Senior Commissioner’s reasons in relation to Ground 1.
239 We would dismiss Ground 1.
240 Given we have upheld the appeal, it is not necessary to decide Ground 2 of the cross appeal.
241 We would dismiss the Union’s cross appeal.
Disposition of FBA 10 of 2024 and FBA 13 of 2024
242 Given our reasons above, we would:
(a) uphold the Minister’s appeal Grounds 1 and 2 in FBA 10 of 2024.
(b) quash the Contravention Decision ([2023] WAIRC 00725) and the Penalty Decision ([2024] WAIRC 00152), such that the following Orders of the learned Industrial Magistrate are set aside:
(i) Order 1 of the Orders made and issued by the Court on 28 August 2023.
(ii) Orders 1–‍3 of the Orders made by the Court on 9 April 2024, which were issued on 11 April 2024.
(c) dismiss the Union’s cross appeal in FBA 13 of 2024.

Schedule – Minister’s Grounds of Appeal

GROUNDS OF APPEAL
REASONS DELIVERED ON 28 AUGUST 2023
1. His Honour committed the following errors in construction and should have concluded Principal Officers who work on Public Holidays are not entitled to overtime.

2. His honour erred in law in determining there was an ambiguity in the Department of Justice Prison Officers’ Agreement 2020 (the Agreement) in relation to whether Principal Officers were entitled to a paid day off on Public Holidays so as to warrant consideration of the surrounding circumstances.
PARTICULARS
(a) Clause 136.3 of the Agreement is clear in its intent in stating “Except where specifically provided for in this Agreement payment for work performed on all Public Holidays is included in an officer's Annualised Salary”.
(b) The Principal Officer classification in Schedule A of the Agreement, which contains the Annualised Salaries for Prison Officers, contains no salaries which “specifically” provide for payment for work performed by Principal Officers on Public Holidays in addition to the Monday to Friday rates.
(c) There is no other provision that “specifically” provides Principal Officers are entitled to be paid overtime for work performed on Public Holidays.

3. His Honour erred in law in deciding, notwithstanding, clause 136.3 and there being no specific provision in the Agreement under which Principal Officers are entitled to be paid extra for work on Public Holidays, that Principal Officer Harvey was entitled to a paid day off on 26 September 2022, which was observed as the King’s Birthday Public Holiday, and therefore entitled to be paid at overtime rates in addition to her annualised salary for work performed by her on that day.
PARTICULARS
(a) Officer Harvey was engaged to work 120 ordinary hours over 3 weeks in accordance with clause 18.1 of the Agreement.
(b) Officer Harvey was rostered as part of those hours to work on 26 September 2022.
(c) This did not constitute a direction by the Respondent to Officer Harvey to work in excess of her rostered hours of work so as to attract the overtime claimed.
(d) The Agreement contained no provision that Public Holidays were paid holidays for Principal Officers.

4. If His Honour could, in the circumstances, refer to preceding Agreements as an aid in construction, he erred in law and fact, in having concluded at [118] of his reasons that it is not clear why the salaries in Schedule A of Agreements after the 2010 Agreement do not contain a Principal Public Officer Monday to Friday plus Public Holidays classification, that this was evidence that Principal Officers were entitled to paid days off for Public Holidays.
PARTICULARS
(a) No consideration was given to the provisions of the Prison Officers Award or Agreements made before the 2010 Agreement.
(b) No consideration was given to the Principal Officer position being introduced by the 2007 Agreement with only a Monday to Friday rate of pay.
(c) No consideration was given to the Principal Officer position having a Monday to Friday plus Public Holidays rate of pay only for the period of the 2013 Agreement.
(d) His Honour should have concluded the Annualised Salaries for Principal Officers under the 2020 Agreement include payment for work performed on the Public Holidays.
(e) His Honour failed to provide the Respondent an opportunity to be heard in respect of the Agreements that were not referred to by either party during the hearing and his conclusion that the 2013 Agreement supported the Claim when this was not raised by the Claimant.

5. His Honour erred in fact in finding that there was evidence that pointed to Principal Officer’s being entitled to paid days off for Public Holidays up to August 2022 and in law that this should inform the meaning of the relevant clauses of the Agreement.

6. His Honour erred in law in failing to have sufficient regard to the difference in function between interpreting the Agreement for the purposes of section 83 of the Industrial Relations Act 1979 enforcement proceedings before him and the function of the Commission under section 46(1) on an application to “declare the true intention of an award”.
PARTICULARS
(a) Under section 46 the Commission exercises a mixed judicial and arbitral function to declare the “true interpretation” of an award whereas under section 83 only a judicial function is exercised by the Commission to determine the meaning of an award.
(b) His Honour was in error in concluding it was fair that Principal Officers be paid extra for work performed on Public Holidays and therefore it is more likely that it was intended that they be paid overtime for this work.

7. His Honour erred in law in having no, or insufficient, regard to the nature of correctional facilities and employment as a prison officer.
PARTICULARS
(a) Minimum predictable staff levels, irrespective of whether a day happens be to one on which a Public Holiday falls, are required to be maintained to ensure the safety of the public, prisoners and prison officers.
(b) His Honour should have concluded that this made it more likely Principal Officers are, under the Agreement, required to work on days which are Public Holidays, when rostered to do so, without attracting overtime.
(c) His Honour had no regard that his decision in respect of Principal Officers also applied to other Monday to Friday Prison Officer classifications.

REASONS DELIVERED ON 9 APRIL 2024
8. If the Appellant was in breach as found the His Honour was in error in setting the penalty that he imposed.

9. His Honour erred in law in applying section 83 (4A)(a) of the Industrial Relations Act 1979 in determining the penalty imposed for the breach when that section only applies to a body corporate, and involves maximum penalties 5 times higher than those available in the case of an individual under section 84(4A){b), when the Respondent is not a body corporate for the purposes of the Prisons Act 1981.

10. His Honour erred in law in that the penalty was manifestly excessive.
PARTICULARS
(a) The penalty was incorrectly assessed by His Honour as if the Appellant was aware of, or uncaring of the possibility, that not paying Principal Officer Harvey overtime may breach the Agreement when this was not established.
(b) His Honour had insufficient regard to the provisions under consideration being in dispute, ambiguous and not having been the subject of previous consideration.
(c) No account was given to the Appellant’s interpretation being one that could be reasonably taken and there was no evidence that it was not honestly held by the Appellant.
(d) His Honour erred in finding the Appellant embarked on a deliberate course by choosing “a different interpretation” than previously applied when the evidence was prisons had not consistently applied the Appellant’s interpretation and not paying Ms Harvey was the result of seeking to achieve a consistency of payment across all prisons.
(e) His Honour had no regard to the obligation imposed on the Respondent to only pay entitlements to employees to which they are entitled under the industrial instruments that apply to their employment.
(f) It was unreasonable to find the failure of the Appellant to seek an interpretation of the provisions in dispute was a circumstance of aggravation.
(g) The penalty was assessed under section 83(4A)(a).
(h) A caution was the appropriate penalty in the circumstances if a breach occurred.

11. In the event of the Full Bench upholding the finding that the Appellant committed the breach the Appellant seeks the penalty be varied to a caution.
Glossary
Term
Definition
1994 Agreement
Gaol Officers Industrial Agreement 1994
2007 Agreement
Department of Corrective Services Prison Officers’ Enterprise Agreement 2007
2010 Agreement
Department of Corrective Services Prison Officers’ Enterprise Agreement 2010
2013 Agreement
Department of Corrective Services Prison Officers’ Enterprise Agreement 2013
2016 Agreement
Department of Corrective Services Officers’ Industrial Agreement 2016
2018 Agreement
Department of Justice Prison Officers’ Industrial Agreement 2018 
2020 Agreement
Department of Justice Prison Officers’ Industrial Agreement 2020
Award
Prison Officers’ Award, previously known as the Gaol Officers’ Award 1998 No. 12 of 1968
Contravention Decision
Western Australian Prison Officers' Union of Workers v Minister for Corrective Services [2023] WAIRC 00725; (2023) 103 WAIG 1620
IMC
Industrial Magistrates Court
Interpretation Act
Interpretation Act 1984 (WA)
IR Act
Industrial Relations Act 1979 (WA)
Minister
Minister for Corrective Services
Penalty Decision
Western Australian Prison Officers’ Union of Workers v Minister for Corrective Services [2024] WAIRC 00152; 104 WAIG 550
PROMF
Classification of Principal Officer (Monday to Friday)
Union
Western Australian Prison Officers’ Union of Workers’
VSO
Classification of Vocational Support Officer
Workplace Relations Act
Workplace Relations Act 1996 (Cth)