DISPUTE RE UNION MEMBERS ENTITLEMENT TO PAID SICK LEAVE

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2026 WAIRC 00046

DELIVERED : FRiday, 30 January 2026

FILE NO. : PSACR 2 OF 2024

Applicant

AND

Commissioner of Police, Western Australia Police Force

Respondent

CatchWords : Industrial Law (WA) - Public Service Arbitrator - Section 44 Conference - Referral for arbitration - Dispute regarding entitlement to paid sick leave - Whether respondent's decision to cease paid sick leave was industrially fair - Jurisdictional objection - Whether application is in contravention of a no further claims clause - Whether relief sought improves upon conditions contained in an industrial agreement - Resignation after Memorandum of Matters settled - Whether there is an industrial matter for the Arbitrator to deal with - Orders sought contravenes no further claims clause - Arbitration against equity, good conscience and substantial merits - Application dismissed

Legislation : Police Act 1892 (WA)

  Police Force Regulations 1979 (WA)

  Industrial Relations Act 1979 (WA)

Result : Application dismissed

Representation:

Applicant : Mr S Farrell (as agent)

Respondent : Mr J Carroll (of counsel)

Case(s) referred to in reasons:

Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch v Burswood Resort (Management) Ltd [2002] WAIRC 05952; (2002) 82 WAIG 2112

Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award (2008) 181 IR 245

The Registrar v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1990) 70 WAIG 29

Toyota Motor Corporation Australia Ltd v Marmara (2014) 222 FCR 152

Reasons for Decision

1         On 4 April 2024, the Western Australian Police Union of Workers (applicant) applied to the Public Service Arbitrator (Arbitrator) under s 44 of the Industrial Relations Act 1979 (WA) (IR Act) for a compulsory conference. The parties did not reach an agreement. Subsequently, the matter was referred for hearing and determination under s 44(9) of the IR Act.

2         The Memorandum of Matters Referred for Hearing and Determination under s 44(9) of the IR Act (Memorandum of Matters), dated 23 May 2024, sets out the agreed facts and issues to be determined:

1.  First Class Constable Shane Murray (‘Murray’) is appointed as a police officer under the Police Act 1892 (WA) and is a member of the Applicant.

2.  Murray has been diagnosed as suffering from post-traumatic stress disorder (‘PTSD’).

3.  On 10 December 2023, Murray commenced sick leave.

4.  Regulation 1304 (1) of the Police Force Regulations 1979 (WA) states:

(1)  Subject to regulations 1308(1) and 1309 and to compliance by the member with regulation 1303, the Commissioner may grant to a member in respect of the member’s incapacity leave of absence with pay —

(a) for up to 168 days in a calendar year; and

(b) if so recommended by the Manager and subject to any terms or conditions recommended by the Manager, for a further period.

5.  On 15 February 2024, the Respondent’s Superintendent of Health Welfare and Safety Division (‘HW&S’) wrote to Murray notifying Murray that he would be recommending to the Commissioner of Police that the Respondent cease paying sick leave. Superintendent Cox had formed the view that Murray had not been engaging in and/or reasonably progressing a Return to Work Program. However, prior to making the recommendation, Superintendent Cox invited Murray to provide written submissions relating to the proposed cessation of Murray’s sick leave.

6. On 7 March 2024, the Respondent wrote to Murray advising of his decision to cease the granting of paid sick leave for a period of three (3) months.

The Applicant’s Position

7.  Murray’s illness was exacerbated by work.

8.  If Murray had not sustained a work-related illness, he would not have been incapacitated and therefore would not be on sick leave.

9.  Murray has engaged with the Respondent during periods of sick leave and has demonstrated sustained and reasonable progression to commence a graduated return to work program supported by medical recommendations.

10.  Murray has had less than 168 days off work on sick leave since becoming incapacitated on 10 December 2023.

11.  The Respondent has not considered Murray’s exceptional circumstances and work-related factors that have attributed to the taking of sick leave in determining whether to continue granting paid sick leave.

12.  The Respondent’s decision is harsh.

The Respondent’s Position

1.  1/C Murray commenced sick leave on 8 December 2023 (part day 6 hours), annual leave on 9 December 2023 (full day) then sick leave from 10 December 2023 to 20 March 2024.

2.  On 29 December 2023 1/C Murray met with WA Police Force Psychiatrist Dr Jaworska, where she recommended that 1/C Murray had the capacity to initiate a graduated return to work program.

3.  On 23 January 2024 Kate Campbell Corporeal Health emailed Sergeant Gary Simpson OIC Bunbury Police Station advising that 1/C should not commence his Return to Work program at Bunbury Police Station but should work within a reasonable distance of Bunbury to access his supports in Bunbury and Psychologist in Busselton. Kate Campbell looked into alternative options within the Bunbury Police Complex, including Prosecuting (outside of Bunbury Police Station), but there were no vacancies. A/Senior Sergeant Simpson suggested to the Vocational Rehabilitation Unit the Return to Work program taking place at Bunbury Police Station. Kate Campbell and Adam Feeney agreed to seek Dr Jaworska’s advice.

4.  On 1 February Dr Jaworska advised Adam Feeney Senior Vocational Rehabilitation Consultant of the issues with 1/C Murray working at Bunbury Police Station however she did advise 1/C Murray could perform non-operational duties away from Bunbury Police Station (including in the Bunbury Police complex).

5.  On 2 February 2024 Kate Campbell Corporeal Health spoke to 1/C Murray and outlined the conditions to return to work at the Bunbury Police Complex. 1/C Murray advised he was awaiting legal advice for over 4 weeks so was reluctant to return to work until this was received.

6.  On 15 February 2024 a meeting between Superintendent Stewart, Bunbury District Office, Kate Campbell Corporeal Health, Adam Feeney Senior Vocational Rehabilitation Consultant and 1/C Murray was held to discuss options for 1/C Murray to return to work to the Bunbury Police Complex.

7.  On 15 February 2024 Superintendent Cox provided 1/C Murray with a Notice of Intention to review paid sick leave entitlement due to 1/C Murray not fulfilling the guideline criteria of ‘Lack of engagement and sustained, reasonable progression of a Return to Work Programs'. 1/C Murray was invited by close of business 29 February 2024 to submit written submissions relating to the proposed cessation of his sick leave.

8.  On 28 February 1/C Murray provided Superintendent Cox a written response relating to the proposed cessation of his sick leave.

9. On 7 March 2024 the Respondent wrote to 1/C Murray advising that after considering the recommendation from Superintendent Cox and 1/C Murray’s written submission that 1/C Murray had not met the criteria to continue to be receive paid sick leave. Paid sick leave would cease for a period of 3 months. This was effective from 14 days after the date of the letter (21 March 2024).

10.  On 4 April 2024 the Applicant filed PSAC 2 of 2024.

11. The respondent’s position is that his decision to revoke paid sick leave for the period 21 March 2024 to 21 June 2024 was fair in all of the circumstances and should not be interfered with by the Public Service Arbitrator. While Police Officers are given the potential of accessing significantly more paid sick leave than ordinary employees, there is a reasonable expectation that officers will engage in programs directed to returning them to work. 1/C Murray failed to do so and, on that basis, revoking the grant of paid sick leave was reasonable and industrially fair.

Issues for referral and determination

12. The following issues are referred for hearing and determination:

(a) Was the respondent's decision to revoke the grant of paid sick leave to 1/C Murray on 7 March 2024 (Decision) industrially fair?

(b)  If not:

(i) Should the Arbitrator interfere with that decision, and if so, how?

(ii) Should the Arbitrator issue any other relief?

The Parties' position on the matters referred

13.  The applicant says:

(a) The respondent's Decision was industrially unfair; and

(b) The arbitrator should quash that decision and make arbitral orders to the following effect:

(i) The respondent provide 1/C Murray with paid sick leave from 21 March 2024 until [date of GRTW program commences].

(ii) The respondent reinstate any paid leave utilised by 1/C Constable Murray between 20 March 2024 and 22 April 2024.

14. The respondent says:

(a)  The respondent's Decision was industrially fair; and

(b)  The proceedings should be dismissed.

3         The applicant seeks an order that the decision by the Commissioner of Police, Western Australia Police Force (respondent) to cease paid sick leave be varied.

4         The respondent opposes the orders sought on the grounds that:

(1) The applicant’s claim is in contravention of a no further claims clause contained within the Western Australian Police Force Industrial Agreement 2022 (2022 Agreement) which binds the applicant;

(2) the respondent’s decision was not industrially unfair in the circumstances; and

(3)  the Arbitrator does not have the power to issue the relief sought.

5         After the Memorandum of Matters was settled, the applicant’s member resigned from his position with the respondent. The respondent further opposes the orders sought on the grounds that the applicant’s member resigned and therefore, there is no longer an ‘industrial matter’ for the Arbitrator to enquire into and deal with and the Arbitrator no longer has jurisdiction.

6         I will first consider the initial objection raised, which is the respondent’s objection on the basis that the applicant’s claim is a contravention of the no further claims clause contained within the 2022 Agreement.

No Further Claims Clause

7         The respondent submits that the fundamental issue arising in these proceedings, is whether it was industrially unfair for the respondent to refuse to grant paid leave for incapacity to the applicant's member under reg 1304 of the Police Force Regulations 1979 (WA).

8         The 2022 Agreement allows discretionary power upon the respondent to grant paid leave for incapacity under clause 39.

9         The respondent refers to clause 9 of the 2022 Agreement which states as follows:

 NO FURTHER CLAIMS

There shall be no further claims during the term of this Agreement.

10      The 2022 Agreement was registered on 22 August 2023 and had a nominal expiry date of 30 June 2024. The applicant’s s 44 application, and the subsequent referral of the matter for hearing and determination under s 44(9), was made during the life of the 2022 Agreement.

11      The respondent refers the Arbitrator to Toyota Motor Corporation Australia Ltd v Marmara (2014) 222 FCR 152 (Toyota) [37], [55]. The respondent submits that a further claim is ‘not merely a claim to a right or entitlement’, but is ‘any attempt to improve upon matters contained in th[e] Agreement’, including by the making of ‘a proposal by one party to vary the outcome arrived at [by way of an agreement] in a way which advances its interests’.

12      The respondent argues the pursuit of a ‘claim’ under s 44 of the IR Act, can amount to a ‘further claim’ within the meaning of such a clause: The Registrar v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1990) 70 WAIG 29 (34).

13      The respondent says it is not necessary that a ‘claim’ be made on behalf of all of the applicant's members, or a class of its members, to engage clause 9 of the 2022 Agreement.

14      The respondent contends that undertakings to make no further claims have been historically regarded as ‘solemn undertakings’ which are ‘morally as well as legally binding’ Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award (2008) 181 IR 245 [15] (Crown Employees).

15      The respondent seeks for the dismissal of the proceedings without the determination of the merits of the application because it would be contrary to:

(a) equity and good conscience as the parties have agreed that neither party will make further claims during the term of the 2022 Agreement; and

(b) the objects of the IR Act as identified in s 6(ae), based upon the statutory assumption that the 2022 Agreement provides for fair terms and conditions for employees covered by the 2022 Agreement. It follows that there is no basis for the Arbitrator to confer a more beneficial term upon a police officer covered by the 2022 Agreement to the detriment of the respondent; and

(c) the objects of the IR Act as identified in s 6(ag) because if, after reaching agreement on a fair set of terms and conditions of employment to be contained in an industrial agreement, a party to that agreement could seek arbitration for a more beneficial order. Consequently, there would be insufficient motivation for parties to make industrial agreements. Such agreements would simply be safety nets, and the making of an industrial agreement would not truly settle disputes as to the terms and conditions for employees covered by the industrial agreement for the life of the industrial agreement.

16      The applicant’s argument is that s 80E(5) of the IR Act clarifies that while an employer retains the power to act on matters within the Arbitrator’s jurisdiction, any such actions may be reviewed, altered, or nullified by the Arbitrator when exercising their authority. The applicant contends that they are seeking to have the Arbitrator review, alter or adjust the respondent’s decision to cease sick leave payment in the specific circumstances of one of their members.

17      The applicant maintains the outcome sought is not a finding or declaration that the respondent breached the 2022 Agreement. The applicant asserts the respondent will retain the discretion to pay or not pay sick leave to the applicant’s members. However, a decision by the Arbitrator would provide guidance to the respondent on the factors to consider when exercising their discretionary powers. The applicant’s view is that this matter concerns the exercise of discretion and whether the discretion is unfettered or ought to be applied consistent with legal principles in a just manner.

18      The applicant argues that a review of the respondent’s decision under s 80E of the IR Act, does not have the effect of granting or expanding the sick leave provisions set out in clause 39 of the 2022 Agreement. The applicant submits that the legislative power to review under s 80E of the IR Act, permits the Arbitrator to determine whether the respondent’s discretion has been exercised fairly.

19      According to the applicant, a review of the respondent’s decision is warranted because in their experience, the respondent has not previously ceased paid sick leave for one of the applicant’s members prior to 2024, other than in circumstances when a police officer:

(a) does not regularly attend medical appointments;

(b) does not provide medical certificates or;

(c) refuses to engage in a return-to-work program.

20      This custom, the applicant argues, is the benchmark by which the respondent’s decision to cease paid sick leave is to be properly considered, and the benchmark to determine whether the decision to cease payment was industrially fair or not.

21      I consider the issue in contention before me concerns the exercise of the respondent’s discretion in determining whether to grant a member of the applicant paid sick leave or not. The issue as set out in the Memorandum of Matters, is whether the determination in the matter concerning the applicant’s member was industrially fair.

22      The Memorandum of Matters does not seek to alter or vary the text of clause 39 of the 2022 Agreement. However, an arbitrated outcome will have the effect or consequence of modifying the basis on which the respondent may exercise its discretion to grant paid sick leave.

23      The applicant submits that an arbitrated outcome would guide the discretion exercised by the respondent.

24      An arbitrated outcome involves the creation of rights and in this matter, it would result in prescribing, at least some, of the circumstances that the respondent must consider granting paid sick leave. In effect, the scope of the respondent’s discretion is altered and requires the respondent to grant paid sick leave in certain circumstances.

25      I consider that the effect of an arbitrated outcome would prescribe that the respondent’s discretion ought to be exercised in a specified manner and under certain circumstances. This outcome results in a material variation to the terms of the 2022 Agreement by introducing criteria for the exercise of the discretion afforded to the respondent.

26      This is consistent with the observations in Toyota, in which a further claim encompasses:

… a proposal made by a party to the Agreement to materially change the terms of and condition of employment set out in the Agreement other than in a manner already provided for by the Agreement. … [37].

27      Having found the applicant’s claim seeks to make a further claim which is prohibited by the terms of the 2022 Agreement, I must decide whether the application ought to be dismissed.

28      The respondent says that it is contrary to the objects of the IR Act and the public interest, for the Arbitrator to entertain a claim that is pursued in contravention of a no further claims clause. The respondent refers the Arbitrator to Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch v Burswood Resort (Management) Ltd; [2002] WAIRC 05952; (2002) 82 WAIG 2112 (Burswood Resort). In this matter, the Commission in Court Session considered the application of the public interest and claims made by a party bound by a no further claims commitment:

However, it is our view that it is desirable and in the public interest to dismiss the Union's application pursuant to s.27(1)(a)(ii) of the Act. In our view it is inherent in the objects of the Act and the entire scheme of the Act that the Commission is to encourage the parties to settle industrial disputes and where such disputes are resolved by amicable agreement by entering into a s.41 industrial agreement, the terms of that agreement should be adhered to. Further it is our view by bringing a claim for an award and seeking arbitration, that action is in breach of Clause 45 of the Casino Agreement. Pursuant to s.83 of the Act where a contravention or failure to comply with a provision of an industrial agreement is proved a penalty can be imposed by the Industrial Magistrate. In Registrar v Amalgamated Metal Workers' and Shipwrights' Union of Western Australia (1989) 69 WAIG 29 and (1990) 70 WAIG 3947 the Full Bench upheld appeals by the Registrar (against a decision of the Industrial Magistrate), that there was a case to answer by the Union in respect of a ‘no extra claims’ clause. In the second appeal the Full Bench remitted the matter to the Industrial Magistrate to fix a penalty [13].

29      The applicant contends that it seeks the Arbitrator exercise powers available under s 80E of the IR Act.

30      However, s 80E does not provide a basis for the powers of the Arbitrator to be exercised in a manner not consistent with s 26 and s 27 of the IR Act.

31      I agree it is not in the public interest to permit a party to seek arbitrated outcomes that effectively improve upon the terms and conditions prescribed by an industrial agreement, which also includes a term that the party agrees to not seek to make such claims during the term of the agreement.

32      I find that equity, good conscience and the substantial merits of the case under s 26(1) of the IR Act, means that I ought not permit a party to pursue a claim where that party has made an undertaking to not make further claims under an industrial agreement.

33      In addition, similar to Burswood Resort, it is in the public interest to dismiss such an application.

34      Given my conclusions it is not necessary to consider the further grounds on which the respondent opposes the orders sought, and I will dismiss the application.