Industrial Magistrates Court of Western Australia

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A prison officer and member of the Western Australian Prison Officers' Union of Workers was headquartered at Broome Regional Prison. The Department of Justice Prison Officers' Industrial Agreement 2020 applied to the officer. The officer’s employer, the Department of Justice, required him to take his annual leave in accordance with a leave roster. But at the time the officer took leave, he was already on an authorised absence from work because he was incapacitated and in receipt of weekly payments of compensation under the Workers' Compensation and Injury Management Act 1981 (WA).

Clause 85 of the Agreement entitles an officer who is headquartered in the North West, and who proceeds on annual leave to a destination outside that region to "paid travelling time". The Union alleged that the respondent contravened clause 85 of the Agreement by failing to pay the officer an amount in addition to his weekly payments of compensation as paid travel time. The employer denied any contravention of the Agreement.

Industrial Magistrate Cosentino was required to consider the nature of the entitlement in clause 85. In particular, whether the entitlement was to be allowed time off, or whether it was an entitlement to be compensated for travel in an officer’s own time. If it was an entitlement to be allowed time off, then the entitlement did not apply to the officer, who was already entitled to time off from work because of his compensable injury. The Industrial Magistrate identified several provisions of the Agreement’s text which pointed to an objective intention that the entitlement be to be allowed time off without loss of pay, rather than to be compensated for time spent travelling. Accordingly, the Industrial Magistrate rejected the Union’s contention that the officer was entitled to be paid an amount over and above the weekly payments he received for incapacity for the relevant period. There being no proven contravention of the Agreement, the claim was dismissed.

The decision can be read here.

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