Industrial Magistrates Court of Western Australia

This decision concerns the operation of the new public holiday provisions in s 30 of the Minimum Conditions of Employment Act 1993 (WA) (MCE Act), which commenced on 31 January 2025 and were modelled on s 114 of the Fair Work Act 2009 (Cth). In particular, the Industrial Magistrates Court of Western Australia (Court) was required to consider what constitutes a valid “request” to work on a public holiday and how the reasonableness of such a request is to be assessed, having regard to the Full Federal Court’s decision in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51; (2023) 297 FCR 323 (OS MCAP).

The claimant, a sworn police officer employed in a non-operational role, alleged that the Police Commissioner contravened s 30 of the MCE Act by requiring him to work on the Labour Day public holiday on 3 March 2025.  The claimant commenced proceedings under s 83(1)(e)(ii) of the Industrial Relations Act 1979 (WA) (IR Act) and also sought orders preventing further contraventions of the MCE Act and the imposition of pecuniary penalties, including on the basis that the alleged contravention was a serious contravention.

The claimant had been rostered to work on 3 March 2025, pursuant to a roster published before the new public holiday provisions commenced. Following the legislative amendments, WA Police issued broadcasts explaining the new provisions and establishing a process for employees to request not to work on a specific public holiday. The claimant, through his application, requested not to work because his role did not involve critical duties and because he was required to care for his three children, who would not be at school due to the public holiday. The application was ultimately refused by his supervisor.

The claimant argued that no valid request to work had been made within the meaning of s 30 of the MCE Act. Alternatively, he contended that any request was not reasonable because his duties were office-based, did not involve frontline policing and were not essential to community safety on the day in question.

The Commissioner of Police denied the claim, arguing that the roster, internal broadcasts and discussions between the claimant and his supervisor constituted a request to work within the meaning of the MCE Act.

Applying the principles in OS MCAP, the Court held that a request must leave room for discussion or negotiation and provide the employee with an opportunity to refuse. The Court found that this requirement had been satisfied. It concluded that the broadcasts, discussions with the supervisor and the formal application process through which employees could seek not to work on a public holiday provided the opportunity for consideration and refusal contemplated by s 30 of the MCE Act and accordingly, the claimant had not merely been directed to work.

The Court also found that the request was reasonable. Significant weight was placed on the nature of WA Police as an essential emergency service operating on a 24-hour basis. The Court accepted that sworn officers, including those employed in non-operational roles, remained operational police officers who could be redeployed at short notice if required. It held that the Commissioner was entitled to maintain sufficient operational capacity on public holidays to respond to emergencies and unforeseen incidents.

Importantly, the Court rejected the claimant’s focus on the specific duties he was scheduled to perform on the public holiday, instead determining that the ‘reasonableness’ assessment was not confined to whether the claimant was personally required to undertake urgent or frontline work on the public holiday, but extended to the broader operational requirements of WA Police and the need to maintain an available and deployable workforce.

The Court also considered the claimant’s personal circumstances. While family responsibilities are a relevant factor under s 30(4) of the MCE Act, the Court found that the reasons advanced in the claimant’s application lacked sufficient detail and did not justify his request not to work. In particular, the Court noted that the claimant had acknowledged that his wife was available to care for the children on the public holiday.

The Court further observed that the claimant had previously worked on public holidays and could reasonably have expected that he might be requested to do so again. It also noted that police officers receive employment benefits, including additional annual leave and annualised remuneration arrangements, which reflect an expectation that public holiday work may be required.

The Court concluded that the Commissioner of Police had made a request within the meaning of s 30 of the MCE Act, that the request was reasonable, and that the claimant had failed to establish any contravention of the MCE Act. The claim was dismissed in its entirety. As no contravention was established, the Court also refused the claimant’s application for preventative orders and pecuniary penalties, including his allegation that any contravention constituted a serious contravention.

The full decision can be read here. 

The Industrial Magistrates Court of Western Australia (Court) has dismissed a claim brought by a teacher employed by the Department of Education (the claimant), who alleged he was subjected to adverse treatment after making complaints about the principal of a remote school where he had been working.

The claimant was employed by the Department of Education as a permanent teacher and had worked at several remote schools as part of the Department’s Remote Teaching Service. In April and June 2024, the claimant made complaints about the conduct and management style of the school principal. The claimant alleged that after making those complaints, he missed out on teaching opportunities at two other remote schools, was placed on leave without pay (LWOP) for several weeks, had his leave entitlements “frozen”, and was later subjected to performance management. 

The claimant argued that these actions were taken in retaliation for his complaints and sought a range of remedies, including compensation for unpaid salary amounting to $15,615, re-crediting of personal and long service leave entitlements that would have accrued but for being on LWOP, and an additional six months of paid leave. 

The respondents accepted that the claimant had made employment-related complaints but denied that any detrimental action had been taken because of those complaints. Accordingly, the Court was required to determine whether the actions relied upon by the claimant amounted to “damaging action” under the Industrial Relations Act 1979 (WA), and if so, whether there was a causal connection between those actions and the complaints he had made.

In relation to the alleged job opportunities lost at two remote schools, the Court found that, with respect to the first school, the claimant had expressed an interest in a position but had never been offered one. The evidence showed that the principal decided not to pursue the claimant’s application after speaking with departmental staff and the claimant’s current principal regarding concerns about his performance and suitability. The Court accepted that the decision-maker was unaware of the claimant’s complaints and was motivated solely by information concerning the claimant’s teaching performance and conduct.

The Court reached a similar conclusion regarding the second remote school. Although the principal initially indicated that a position would be available, the offer was later withdrawn after it became apparent that the proper recruitment process, including consultation with the local school council, had not been followed. The Court accepted evidence that the principal did not know about the claimant’s complaints, did not know the claimant’s current principal, and only withdrew the offer because the required recruitment procedures had not been followed.

In relation to the claimant’s placement on LWOP between October and November 2024, the Court accepted that: 
1)    the claimant had completed his remote teaching placement, had exhausted his remote service leave, and remained without a new placement making the claimant an “unattached teacher”; 
2)    the Department had a practice of placing unattached teachers on LWOP to prevent overpayment while redeployment arrangements were being finalised (LWOP procedure); 
3)    the department’s LWOP procedure was the reason the claimant was placed on LWOP (and why his leave accruals temporarily ceased accruing), rather than the claimant’s complaints.

The claimant also alleged that he had been placed on performance management because of his complaints. However, the Court found there was insufficient evidence to establish that any performance management process constituted damaging action or that the current principal had any involvement in it. 

While the Court accepted that some of the matters raised by the claimant, such as the withdrawal of an employment offer at the second school and the placement on LWOP, were capable of constituting damaging action, it found that none of the actions raised by the claimant occurred because he had made complaints about his current principal. Accordingly, the claim was dismissed.

The full decision can be read here.

In November 2025, the claimant, who had been employed by the respondent as an Asset Manager in Karratha from April 2014 until December 2024, commenced proceedings in the Industrial Magistrates Court of Western Australia (Court) under the Small Claims procedure alleging that the respondent contravened s 90(2) of the Fair Work Act 2009 (Cth) (the Act) by failing to include various annualised allowances (totalling approximately $61,000 inclusive of superannuation) in the payment of his accrued annual leave and long service leave on termination.

The claimant contended that those allowances (including a location allowance, housing allowance, availability allowance and overtime allowance) were paid when he took annual leave and public holiday leave during his employment and therefore would have been payable had he taken the accrued leave before his employment ended.

The respondent denied that there was a legal obligation in either the employment contract or the enterprise agreement requiring it to pay the allowances during annual leave or long service leave, or to include them in any termination payments. The respondent relied on ss 90(1) and (2) of the Act to support its contention that accrued annual leave is paid out on termination at an employee's base rate of pay (as defined in s 16 of the Act and, relevantly, excluding monetary allowances). The respondent further submitted that because the Long Service Leave Act 1958 (WA) (LSL Act) did not apply to the claimant during his employment pursuant to s 4A(4) of that Act, the payment of LSL was governed by the Agreement, which  provided for the payment of LSL at the base salary rate, exclusive of allowances.

The Court was required to determine whether any of the allowances were payable upon termination for the purpose of calculating accrued and untaken annual and long service leave, and if so, whether there was a legal obligation giving rise to their payment.

In relation to annual leave, the Court considered each allowance separately.

The Court found that the location allowance and housing allowance were payable under both the enterprise agreement and the claimant’s employment contract. These allowances formed part of the claimant’s total remuneration and were intended to compensate employees for the additional costs associated with living and working in regional WA. As the allowances were not confined to periods when the claimant was actively working and, if paid annually rather than fortnightly, would have covered periods of annual leave in any event, the Court concluded they would have been payable had the claimant taken his accrued annual leave and therefore should have been included in his annual leave payout on termination.

The Court reached a different conclusion regarding the availability allowance and overtime allowance. It found these allowances were linked to the claimant’s availability to perform work and, in the case of the overtime allowance, were paid at the respondent’s discretion. The Court held that there was no entitlement under the enterprise agreement to continue paying these allowances during annual leave. Although the respondent had historically chosen to continue paying them while the claimant was on leave, that practice did not create a legal obligation to include them in the payout of untaken annual leave on termination.

The Court also rejected the claimant’s argument that any of the allowances should have been included in his long service leave payment.

Regardless of whether the entitlement was assessed under the Agreement or under the LSL Act, the Court found that long service leave was payable at the claimant's base rate of pay. Both the agreement and the legislation expressly excluded allowances from the calculation of long service leave payments. As a result, none of the allowances were required to be included in the calculation of the claimant’s long service leave entitlement.

The Court found that the respondent had contravened s 44 of the Act by failing to comply with the National Employment Standards, specifically by failing to include the location and housing allowances in the claimant's annual leave payout as required by s 90(2) of the Act. It ordered the respondent to pay the claimant a further $11,981.60 in annual leave entitlements and $1,377.88 in superannuation relating to those amounts.

The remainder of the claim, including the claim for availability and overtime allowances and for additional long service leave payments, was dismissed.

The full decision can be read here.