DISPUTE RE CESSATION OF PAID SICK LEAVE FOR UNION MEMBERS

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2026 WAIRC 00048

DELIVERED : Friday, 30 January 2026

FILE NO. : PSACR 3 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 cessation of 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 - 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 17 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. No agreement was reached between the parties and as such, 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 21 June 2024, sets out the agreed facts and issues to be determined:

1. Detective Sergeant David Chamberlain (Chamberlain) is appointed as a non-commissioned police officer under the Police Act 1892 (WA) and is a member of the Applicant.

2. Chamberlain has been diagnosed as suffering from post-traumatic stress disorder (PTSD), major depressive disorder, and general anxiety disorder. He also suffers from long COVID.

3. On 5 October 2022, Chamberlain commenced paid sick leave.

4. Chamberlain commenced a graduated return to work program on or around 6 February 2023.

5. On or around 25 April 2023, Chamberlain underwent a medical procedure and was on paid sick leave from that date until 25 February 2024.

6. 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. 

7. On 8 January 2024, the Respondent’s Superintendent of Health Welfare and Safety Division (HW&S) wrote to Chamberlain notifying Chamberlain that he would be recommending to the Commissioner of Police that the Respondent cease payment of sick leave. Prior to making the recommendation, Superintendent Cox invited Chamberlain to provide written submissions relating to the proposed cessation of Chamberlain’s paid sick leave.

8. Chamberlain provided a written response dated 18 January 2024.

9. In February 2024, the Respondent wrote to Chamberlain advising of his decision to cease the granting of paid sick leave for a period of three (3) months.

10. On 22 April 2024, the Respondent determined that Chamberlain will not be medically fit to return to duties as a police officer in the short or medium term and so commenced the medical retirement process. The Respondent reinstated Chamberlain’s paid sick leave from this date.

The Applicant’s Position

11. Chamberlain’s illness was exacerbated by work.

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

13. Chamberlain has engaged with the Respondent during periods of sick leave and has not been medically fit to demonstrate sustained and reasonable progression to commence a graduated return to work program supported by medical recommendations.

14. The Respondent was in possession of advice from medical practitioners at the time it wrote to Chamberlain in January and February 2024 and so was aware that he was unable to participate in a graduated return to work programme.

15. The Respondent has not considered Chamberlain’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.

16. The Respondent’s decision is harsh.

The Respondent’s Position

17. The respondent's position is that in all of the circumstances the decision to refuse to grant further paid sick leave was fair and should not be interfered with by the Public Service Arbitrator.

18. Police Officers are given the potential of accessing significantly more paid sick leave than ordinary employees, the grant of paid sick leave is entirely at the discretion of the respondent.

19. In Chamberlain's case, the respondent granted him access to 141 days of paid sick leave in 2022, 345 days of paid sick leave in 2023 (amounting to a full year excluding authorised leave), and 61 days of paid sick leave in 2024 up to the date that the grant of paid sick leave ceased. Save for the brief period of authorised leave, Chamberlain was granted paid leave continuously from 5 October 2022 until February 2024.

20. Paid sick leave was reinstituted on 22 April 2024, meaning that Chamberlain was on unpaid sick leave for the period 25 February to 22 April 2024 (around 8 weeks).

21. On 12 February 2024, Dr Helena Piirto (Occupational Psychiatrist) examined and reported:

(a) ‘Chamberlain presents with a chronic PTSD which is not debilitating or associated with clinically significant independent functional impairment’;

(b) ‘Chamberlain presents with an Adjustment Disorder with Mixed Anxiety and Depressed Mood which is directly related to his range of physical conditions, and associated functional compromise’; and

(c) ‘If it were not for … Chamberlain's physical conditions and complaints, I do believe that he would have the capacity to engage in a return-to-work program, initially in a part-time Non-Operational capacity. However, this cannot be independently recommended in view of the ongoing physical complaints. If he was expected to return to work while still addressing his physical health concerns, I believe he would present with heightened anxiety’.

22. Contrary to the applicant's case, the predominant cause of Chamberlain's incapacity to work is non-work related physical health concerns.

23. Paid sick leave is for the purposes of recovering so that one can return to their work.

24. Chamberlain's state of fitness as of February 2024 demonstrated continued uncertainty as to the timing of being able to commence a return to work program with a view of returning to full duties.

25. In assessing the fairness of the decision to refuse to continue to grant paid sick leave from 25 February 2024, it is necessary to have regard to all of the circumstances leading up to that decision from the previous 2 years. In circumstances where the respondent had granted Chamberlain paid sick leave continuously for over 1.5 years and where there was no reasonably certainty as to when Chamberlain might be in a position to commence a return to work program, it was not unfair for the respondent to make the decision to cease granting paid sick leave from 25 February 2024.

26. The Arbitrator should not interfere with the decision.

Issues for referral and determination

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

(a) Was the respondent's decision to refuse to continue to grant paid sick leave to Detective Sergeant Chamberlain in February 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

28. 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 DS Chamberlain with paid sick leave from the date it ceased paying sick leave until 22 April 2024.

ii. The respondent reinstate any paid leave utilised by DS Constable Chamberlain between February 2024 and 22 April 2024.

29. The respondent says:

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

(b) The proceedings should be dismissed.

3         The applicant seeks a declaration to vary the decision by the Commissioner of Police, Western Australia Police Force (respondent) to cease paid sick leave and an order for the respondent to:

(1)  pay the applicant’s member sick leave from 10 February 2024 to 22 April 2024; and

(2)  reinstate any paid leave used by the applicant’s member between February 2024 and 22 April 2024.

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         I will first consider ground one, 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

6         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).

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

8         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.

9         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.

10      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’.

11      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).

12      The respondent submits 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.

13      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).

14      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.

15      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.

16      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.

17      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 disputes 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.

18      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.

19      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.

20      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.

21      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.

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

23      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.

24      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.

25      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].

26      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.

27      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].

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

29      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.

30      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.

31      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.

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

33      Given my conclusions it is not necessary to consider grounds two and three of the respondent’s objections.

34      Accordingly, I will dismiss the application.