2026 WAIRC 00306
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2026 WAIRC 00306



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
THURSDAY, 9 APRIL 2026



DELIVERED
:
WEDNESDAY, 20 MAY 2026



FILE NO.
:
M 95 OF 2025



BETWEEN
:
GLEN DINSDALE


CLAIMANT





AND





COMMISSIONER OF POLICE, WESTERN AUSTRALIA POLICE FORCE


RESPONDENT

CatchWords : INDUSTRIAL LAW – Minimum Conditions of Employment Act 1993 (WA) – Entitlement not to work on a public holiday – Whether a request was made to work on a public holiday – Whether the request was reasonable – Whether the reason for refusing to work was reasonable – Turns on own facts
Legislation : Minimum Conditions of Employment Act 1993 (WA)
Industrial Relations Legislation Amendment Act 2024 (WA)
Fair Work Act 2009 (Cth)
Industrial Relations Act 1979 (WA)
Police Act 1892 (WA)
Police Force Regulations 1979 (WA)
Instrument : Western Australia Police Force Industrial Agreement 2021
Cases referred
to in reasons : Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51; (2023) 297 FCR 323
Shop Distributive & Allied Employees Association v Woolworths Ltd [2012] FCA 540
Falconer v Commissioner of Police [No 2] [2024] WASCA 47
Western Australian Police Union of Workers v Commissioner of Police [2021] WAIRC 00047; (2021) 101 WAIG 293
Result : The claim is dismissed
Representation:
Claimant : Mr N. Ellery (of counsel) as instructed by Slater & Gordon
Respondent : Mr J. Carroll (of counsel)



REASONS FOR DECISION
Background
1 This case concerns the statutory entitlement of employees to be absent from work on public holidays, and circumstances in which an employer may reasonably request that an employee work on such a day.
2 Section 30 of the Minimum Conditions of Employment Act 1993 (WA) (MCE Act) was replaced as part of a suite of amendments introduced by the Industrial Relations Legislation Amendment Act 2024 (WA), which commenced on 31 January 2025.
3 The Explanatory Memorandum to the Industrial Relations Legislation Amendment Bill 2024 (Explanatory Memorandum) explains that the new s 30 is modelled on s 114 of the Fair Work Act 2009 (Cth) (FWA), which was the subject of a decision by the Full Court of the Federal Court of Australia in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51; (2023) 297 FCR 323 (OS MCAP). Explanatory Memorandum [680]  [688].

4 Glen Dinsdale (Mr Dinsdale) was a sworn operational non-commissioned police officer working in a non-operational policing role when on 3 March 2025, a public holiday (Labour Day), he claims that the Commissioner of Police required him to attend work contrary to the terms of s 30(1) of the MCE. See generally, the Substituted Statement of Claim lodged on 22 December 2025 (Substituted Claim).

5 Both parties relied upon, and referred to, the decision in OS MCAP. To that end, the dispute between the parties did not so much go to the law but the facts upon which each party says supports that a request was or was not made by the Commissioner of Police, and whether that request was or was not reasonable.
6 While it was not identified in the Substituted Claim, it is assumed Mr Dinsdale is applying to the Industrial Magistrates Court (IMC) for the enforcement of an entitlement provision pursuant to s 83(1)(e)(ii) of the Industrial Relations Act 1979 (WA) (IR Act).
7 Section 30(1) of the MCE Act is within Part 4, Division 5 of the MCE Act relating to minimum leave conditions. A minimum condition of employment may be enforced under s 83 of the IR Act as an entitlement provision. Section 7 of the IR Act – definition of ‘entitlement provision’ paragraph (c).

8 An entitlement under Part 4 of the MCE Act relating to a public holiday includes, relevantly, to be absent from work on a public holiday or to refuse (on reasonable grounds) a request to work on a public holiday. See s 3 of the MCE Act – definition of ‘minimum condition of employment’ paragraph (g).

9 Mr Dinsdale claims that:
(a) the Commissioner of Police did not request him to work on 3 March 2025; and
(b) if any request was made by the Commissioner of Police, the request was not reasonable (the Claim).
10 Mr Dinsdale’s primary case is that no request was made by the Commissioner of Police on 3 March 2025. Certainly, the basis for the Claim did not assert that any refusal by Mr Dinsdale to attend work on 3 March 2025 was reasonable pursuant to s 30(3)(b) of the MCE Act. Following discussions during the hearing, I understood that the Claim did not include an additional component that any refusal to work made by Mr Dinsdale was reasonable pursuant to s 30(3)(b) of the MCE Act. ts 39.
While the Commissioner of Police suggested that a refusal had been made by Mr Dinsdale, both parties argued their respective cases having regard to principally s 30(2) and s 30(3)(a) of the MCE Act, as set out in the Claim.
11 This is relevant because OS MCAP, at [43], indicates that consideration of the reasons for a refusal need to be considered. However, and notwithstanding that the Commissioner of Police says they treated Mr Dinsdale’s application for not wanting to attend work as a refusal, Mr Dinsdale refuted that he refused to attend work on 3 March 2025. ts 39, 50.
Therefore, if Mr Dinsdale’s case is that he did not refuse to attend work, then consideration of the Claim is confined to that specified in paragraph [9] above. Mr Dinsdale’s reasons for not wanting to attend work (or refusing to attend work) on 3 March 2025 will be considered along with other factors under s 30(4) of the MCE Act. However, if there is any doubt about that approach, a finding on the nature of Mr Dinsdale not wanting to attend work or his refusal is also made.
12 Mr Dinsdale seeks orders:
(a) finding that the Commissioner of Police contravened s 30 of the MCE Act;
(b) pursuant to s 83(5) of the IR Act preventing the Commissioner of Police from further contravening the MCE Act; and
(c) imposing a pecuniary penalty for a serious contravention, or alternatively a contravention, pursuant to s 83(4) of the IR Act, with the pecuniary penalty being paid to Mr Dinsdale pursuant to s 83F(2) of the IR Act.
13 Schedule I to these reasons is the jurisdiction, practice and procedure of the IMC under the IR Act.
Agreed Facts Exhibit 3 – Statement of Agreed Facts lodged 2 February 2026.

14 Mr Dinsdale was appointed by the Commissioner of Police pursuant to s 7 of the Police Act 1892 (WA) (Police Act). At all times relevant to the Claim, Mr Dinsdale was a sworn police officer but at the time of the hearing he had resigned his engagement.
15 Pursuant to s 5 of the Police Act, the Commissioner of Police is charged and vested with the general control and management of the Police Force of Western Australia (WA Police).
16 The MCE Act applied to Mr Dinsdale as if he was an employee and to the Commissioner of Police as if the Commissioner was an employer of Mr Dinsdale. Section 6A of the MCE Act.

17 At the relevant time, Mr Dinsdale worked in the Technology Portfolio, Innovation Division (Technology Portfolio) in the WA Police.
18 Monday, 3 March 2025 was the Labour Day public holiday as defined in s 3 and Schedule 1 of the MCE Act.
19 On 28 January 2025, a roster was posted for staff working in the Technology Portfolio for the period between 24 February 2025 to 23 March 2025 (the Roster), pursuant to cl 12(4) of the Western Australia Police Force Industrial Agreement 2021 (the Police Agreement). The Western Australia Police Force Industrial Agreement 2024 was registered on 13 May 2025.
The Roster shows that Mr Dinsdale was rostered to work on 3 March 2025.
20 On 26 February 2025, Mr Dinsdale submitted a public holiday application explaining his reasons for not wishing to work on 3 March 2025 (Dinsdale PH Application). Exhibit 3, Agreed Document 2.

21 Superintendent Steven Thompson (Supt Thompson) was Mr Dinsdale’s supervisor.
22 On 27 February 2025, the Commissioner of Police published a broadcast within the WA Police (27 February Broadcast). Exhibit 3, Agreed Document 3.

23 On 28 February 2025, Supt Thompson informed Mr Dinsdale by email that the Dinsdale PH Application was not accepted. Exhibit 3, Agreed Document 4.

Other Evidence
24 The other evidence has been summarised in the following paragraphs.
25 Mr Dinsdale relied upon his two witness statements signed on 13 February 2026 Exhibit 1 – Witness Statement of Glen Dinsdale signed on 13 February 2026.
and 18 March 2026, Exhibit 2 – Witness Statement of Glen Dinsdale in Reply signed on 18 March 2026.
and he gave oral evidence at the hearing.
26 The Commissioner of Police relied upon the evidence of Supt Thompson in a witness statement signed on 25 February 2026 Exhibit 5 – Witness Statement of Stephen Thompson signed on 25 February 2026.
and James Edwin Apostolou (Mr Apostolou) in a witness statement signed on 10 March 2026. Exhibit 4 – Witness Statement of James Edwin Apostolou signed on 10 March 2026.
Supt Thompson also gave oral evidence at the hearing. Mr Apostolou was not cross-examined on his evidence.
27 To the agreed facts, I would also add the following, which was either uncontroverted or evidence I find to be reliable.
28 Supt Thompson is the Superintendent of the Technology Portfolio. Due to various staffing issues, in March 2025 there were four sworn police officers working in the Technology Portfolio.
29 One of those sworn police officers was Mr Dinsdale who held the rank of acting senior sergeant. At that rank, four sworn positions reported to Mr Dinsdale, but, again, due to staffing issues there was only one sworn officer below his position in rank. Exhibit 5 [12]  [14].

30 Mr Dinsdale was also an operational police officer, meaning he was liable to perform operational policing duties, including frontline or deployable policing functions, even if he was working in a non-operational or specialist position. Exhibit 5 [16]; ts 11.

31 Most of the work in the Technology Portfolio is office-based work, although if required team members attend police stations, vendors or other police facilities. Exhibit 5 [5]  [8], [11].
The type of work Mr Dinsdale undertook related to long-term, information technology projects with no imminent deadline to make general improvements or efficiencies. ts 31.
He usually worked from 7.00 am to 3.00 pm between Monday to Friday. Exhibit 1 [6].

32 Mr Apostolou is a public servant employed by the WA Police as Assistant Director Personnel Services Division. Relevant to the Claim, he oversees four business areas delivering processing and production of payroll and leave processing, superannuation and taxation. Exhibit 4 [1]  [2].

33 The WA Police human resources system is called ‘RMIS’ or ‘SAP’. Exhibit 4 [5].
As of 13 March 2025, the number of sworn police officers within WA Police was 7,301. Exhibit 4 [6].

34 On 25 February 2025, the Executive Director of WA Police issued a broadcast to all staff entitled ‘Public Holidays’ referring to the MCE Act (25 February Broadcast). Exhibit 5, ST1; Exhibit 1 [20].
Mr Dinsdale admitted to seeing the 25 February Broadcast and understood that there was a form attached to it. ts 8.

35 Following the 25 February Broadcast, on 25 or 26 February 2025, Supt Thompson had a conversation with all of the sworn officers, including Mr Dinsdale, in the Technology Portfolio and informed them that he expected they put in an application to refuse to work on 3 March 2025. He referred to the 25 February Broadcast and the application process; he also informed the sworn officers that they could put in their application pursuant to that process. Exhibit 5 [21]; Exhibit 1 [21].

36 Supt Thompson reviewed the Dinsdale PH Application and spoke to Mr Dinsdale about the reasons Mr Dinsdale identified in his application. Exhibit 5 [23].

37 Supt Thompson then considered the Dinsdale PH Application and decided to refuse it, requiring Mr Dinsdale to work on 3 March 2025.
38 Supt Thompson briefly informed Mr Dinsdale of his decision on 28 February 2025 before responding in an email on the same day. Exhibit 5 [26]; Exhibit 3, Agreed Document 4; Exhibit 1 [25].

39 On 3 March 2025, 1,752 sworn police officers were on some form of leave, such as annual leave, long service leave, sick leave or rest days. On 10 March 2025, 1,581 sworn police officers were on some form of leave, such as annual leave, sick leave or rest days. Exhibit 4 [8].

40 On 3 March 2025, the WA Police did not (yet) have an electronic method for submitting refusals, and data for refusals needed to be collected manually. On 26 February 2025, the WA Police recorded the number of paper-based public holiday applications to refuse working on 3 March 2025 it had received. Exhibit 4 [9]  [10], JA1.

41 Supt Thompson refers to the ‘readiness capability’ of the WA Police to respond to important and unforeseen events, requiring sufficient numbers of sworn police officers who can respond at any time even where an officer may be stationed in an office-based role. Exhibit 5 [28]  [29].

42 Supt Thompson gave an example of being posted to Mandurah Police Station when there were serious bushfires in the southwest and an emergency management plan activated both operational and non-operational police officers to respond to the emergency. Exhibit 5 [31].

43 Supt Dinsdale stated that if he accepted the Dinsdale PH Application, it would have meant that the Technology Division would have comprised himself and an Acting Inspector (he also refused another police officer’s application). Exhibit 5 [33].

Mr Dinsdale’s Personal Circumstances
44 Mr Dinsdale has three children who were aged 11, 15 and 16 years on 3 March 2025. Mr Dinsdale shares parenting responsibilities with his wife. Their youngest child has a ‘medical condition’ requiring close supervision and care. Exhibit 1 [14]  [16].

Conversation with Supt Thompson on 26 February 2025
45 Supt Thompson states that on 26 February 2025 he reviewed the Dinsdale PH Application and spoke with Mr Dinsdale about his family responsibilities at home for the three children. He states that he asked Mr Dinsdale if there was no one to look after the children on 3 March 2025. Supt Thompson said Mr Dinsdale’s response was to the effect that his wife was home but that it was not fair that she looks after them. Exhibit 5 [23].

46 Mr Dinsdale was silent on this issue, save that he says before he submitted the Dinsdale PH Application, he asked not to work on 3 March 2025. In cross-examination, Mr Dinsdale accepted that after he submitted the Dinsdale PH Application, Supt Thompson asked if there was anyone who was able to look after the children on 3 March 2025 and he said that his wife could, but it was not fair for her to do so. ts 8.

47 I accept Supt Thompson’s evidence that he spoke with Mr Dinsdale on 26 February 2025 about the reasons in the Dinsdale PH Application clarifying Mr Dinsdale’s reasons as it related to family responsibilities.
Incident While Getting Coffee
48 Supt Thompson states that on a public holiday in 2025, he and Mr Dinsdale made an arrest on the street while returning to the office having bought a coffee. Exhibit 5 [18].

49 Mr Dinsdale states this is incorrect and that others effected the arrest, and he saw this happen after the incident when he was near a café. Exhibit 2 [5].

50 In cross-examination, Supt Thompson accepted that Mr Dinsdale may have come after the incident and said that he (Supt Thompson) arrested the person while Mr Dinsdale and another police officer was with the complainant. Mr Dinsdale admitted that he received a telephone call from an inspector to come and assist with the incident. ts 16.

51 I find that Supt Thompson effected an arrest on another public holiday in 2025. Mr Dinsdale arrived after the incident had occurred when requested by an inspector to attend and assist, after which he provided some peripheral assistance.
Wearing of Accoutrements
52 Supt Thompson stated that while working in a non-operational position, Mr Dinsdale carried certain police accoutrements, referred to as an ‘admin carry’, namely a firearm and handcuffs.
53 Mr Dinsdale agreed that he carried certain police accoutrements such as a firearm and magazine, OC spray and handcuffs. He did not wear a full kit, which includes body armour, a radio and TASER. ts 11.

Statutory Framework
54 Section 30 of the MCE Act states:
30. Employee entitled to be absent from work on public holiday
(1) An employee is entitled to be absent from work on a day or part of a day that is a public holiday.
(2) However, an employer may request that an employee work on a day or part of a day that is a public holiday if the request is reasonable.
(3) If an employer makes a request, the employee may refuse the request if —
(a) the request is not reasonable; or
(b) the refusal is reasonable.
(4) In determining whether a request or refusal is reasonable, the following must be taken into account —
(a) the nature and conduct of the employer’s business or operations;
(b) the nature of the employee’s work;
(c) the employee’s personal circumstances, including family responsibilities;
(d) whether the employee could reasonably expect that the employer might request work on the public holiday;
(e) whether the employee is entitled to receive overtime payments, penalty rates or other compensation (including compensation in the form of an annualised salary) for, or a level of remuneration that reflects an expectation of, work on the public holiday;
(f) the type of employment of the employee (for example, whether full‑time, part‑time, casual or shift work);
(g) the amount of notice in advance of the public holiday given —
(i) by the employer when making the request; or
(ii) by the employee when refusing the request.
(5) Subsection (4) does not limit the matters that may be taken into account in determining whether a request or refusal is reasonable.
55 OS MCAP is instructive on:
(a) an analogous framework for s 30 of the MCE Act; and
(b) what constitutes a ‘request’ within the meaning of s 30(2) of the MCE Act.
Meaning of ‘Request’
56 A request to attend work is not the same as a requirement to attend work. ‘Request’ within the meaning of s 114 of the FWA (and therefore s 30 of the MCE Act) accords with its ordinary meaning:
[‘Request’] envisages a circumstance where there is not a unilateral condition of employment requiring an employee to work on a public holiday, but rather the purpose is to allow an employer in circumstances where the request is reasonable, to ask an employee to work on a public holiday, so as to precipitate a discussion or negotiation, as identified by Barker J [in Shop, Distributive & Allied Employees Association v Woolworths Ltd [2012] FCA 540], and most particularly the opportunity for an employee to refuse such a request in reasonable circumstances. OS MCAP [34]; also referred to in the Explanatory Memorandum at [687]  [688].

57 The purpose of the requirement for a request is to leave ‘room for negotiation and discussion’ about the exercise of the entitlement. OS MCAP [33], referring to comments made by Barker J in Shop Distributive & Allied Employees Association v Woolworths Ltd [2012] FCA 540 [20]  [21], [39].

Framework
58 Like that in s 114 of the FWA, s 30(1) of the MCE Act entitles an employee to be absent from work on a public holiday, unless the exceptions in s 30(2) and s 30(3) apply.
59 The exceptions first require the employer to make a request of the employee to work and that the request be reasonable. OS MCAP [31], [34].
Thereafter, the employee may refuse where the request is not reasonable or the refusal is reasonable. OS MCAP [31], [34] referred to as ‘capacity to refuse’. Also referred to at [36] where the request is made and the employee knows they can refuse the request.

60 Making a request prompts discussion or negotiation and provides an opportunity for refusal. OS MCAP [36], [39].

61 Where the request to work is reasonable the employee must agree to the request unless the refusal is reasonable. Thus ‘the choice is not at large’ but is confined by s 30(3) of the MCE Act. OS MCAP [39], [40].

62 In terms of its applicability to critical services, OS MCAP, at [43], states: See also the Explanatory Memorandum [685].

An employer can ultimately require employees to work on public holidays who are involved in critical services or where it is desirable (although ‘not critical’) to remain open on public holidays in circumstances where the employer has satisfied the obligations imposed upon it under ss 114(2) and (3), namely that it has made a request, that request is reasonable, and in circumstances where an employee’s refusal is not reasonable (taking into account the factors in s 114(4)).
63 In terms of its applicability to rostering, OS MCAP, at [44], states:
An employer is able to have a roster which includes public holidays. All that is required is that an employer ensures that employees understand either that the roster is in draft requesting those employees who have been allocated to the holiday work that they indicate whether they accept or refuse that allocation, or where a request is made before the roster is finalised. Emphasis added as the facts of the Claim are not the same as in OS MCAP.
(emphasis added)
64 Section 114 of the FWA, similar to s 30 of the MCE Act, does not provide the form of any request an employer is to take. The Full Court in OS MCAP appear to briefly recognise this, at [38], where it refers to the FWA not mandating anything more than a request to be made.
Was a Request Made?
65 Mr Dinsdale’s primary case is that the Commissioner of Police contravened s 30 of the MCE Act by failing to make a request for him to work on 3 March 2025.
66 Mr Dinsdale argues that the Commissioner of Police directed or required him to work on 3 March 2025 where he was allocated to work that date on the Roster; the contents of the 27 February Broadcast did not constitute a request; the email from Supt Thompson did not contain a request to work; and there was no other attempt to communicate with or make any request of him to work on 3 March 2025.
67 It is uncertain whether implied in the Claim is the expectation or requirement that the Commissioner of Police personally make a request on an individual basis to each employee within the WA Police to work on a public holiday, or if that role may be delegated to others.
68 The Commissioner of Police relies upon the contents of the 25 and 27 February Broadcasts, read with the Roster, in the context of the discussions with Supt Thompson on 25 and 26 February 2025 to establish that a request was made for Mr Dinsdale to work on 3 March 2025 which could be reasonably refused by submitting an application to refuse to work on 3 March 2025.
69 The Commissioner of Police says the Roster did not purport to be a request under s 30 of the MCE Act where it was published before that section came into force.
25 February Broadcast
70 The 25 February Broadcast stated in part:
The WA Police Force operates on a 24/7 basis to help, protect and support the community. Police officers, APLOs, PAOs and police staff shift workers are rostered to work on public holidays to meet operational and service delivery requirements. Additional annual leave is provided in recognition of the expectation to work on public holidays.
OICs/managers are to request a police officer, APLO, PAO or police staff shift worker works on a public holiday before inclusion in the final roster. A Public Holiday Application may be lodged by an employee confirming the reasons they do not wish to work on a public holiday for consideration by their OIC/manager.
The public holiday provisions will be in effect on the Labour Day Public Holiday on Monday, 3 March 2025. It is acknowledged that some rosters have already been posted for this public holiday. Accordingly, police officers, APLO, PAO or police staff shift workers who have been rostered to work on Labour Day, but do not wish to work may lodge a Public Holiday Application with their OIC/manager asap. Exhibit 5, ST1.

27 February Broadcast
71 The 27 February Broadcast stated in part:
As an emergency services provider, the WA Police Force operates on a 24/7 basis to help, protect and support the community. Accordingly, employees will be requested to work on public holidays to fulfil operational, resourcing and service delivery obligations.
…
During [WA Police Union] discussions, I acknowledge the primary concern raised was the potential for inequitable application of the public holiday provisions across business areas, as well as the additional responsibility being placed on OICs and managers to consider the applications from staff to not work a Public Holiday.
Given the priority to deliver on our policing fundamentals, I understand the need to find a balance and to also afford a fair and equitable industrial outcome for you…
With the upcoming Labour Day Public Holiday, I ask for your cooperation to submit your applications as soon as possible so that these can be considered by 12noon, 28 February 2025. Exhibit 3, Agreed Document 3.

72 Sandwiched between the 25 and 27 February Broadcasts is Supt Thompson’s conversation with the sworn police officers in the Technology Portfolio, including Mr Dinsdale, about the 25 February Broadcast and informing them they could put in an application to refuse to work. Mr Dinsdale submitted the Dinsdale PH Application.
73 When regard is had to all of the evidence, I find that the Commissioner of Police, including via their various delegates, requested Mr Dinsdale to work on 3 March 2025.
74 The 25 February Broadcast catered to two different situations: the first was where a roster had not been finalised and the officer-in-charge or manager was to request an employee to work on a public holiday before inclusion in the final roster; and the second was where the roster had already been posted and employees were already rostered to work on 3 March 2025. The second situation applied to Mr Dinsdale because the Roster was posted prior to 31 January 2025.
75 However, in both cases, employees were informed that if they did not wish to work on a public holiday then a public holiday application could be lodged together with their reasons for not wanting to work.
76 Supt Thompson discussed the 25 February Broadcast and reiterated to Mr Dinsdale and others that they could apply to refuse to work on 3 March 2025. Notably, there was no time limit expressed by Supt Thompson and the 25 February Broadcast said for the public holiday application to be submitted as soon as possible. Exhibit 5, ST1.

77 The 27 February Broadcast sought to provide some reassurance to the various WA Police employees and police officers given the proximity of the public holiday on 3 March 2025. The Commissioner of Police informed these employees, including Mr Dinsdale, that they are requested to work on public holidays and to submit ‘applications’ by midday on 28 February 2025.
78 Both the 25 and 27 February Broadcasts gave the reason for the request to work on public holidays, which included 3 March 2025.
79 Mr Dinsdale’s suggestion that the Roster should have been posted in ‘draft’ fails to appreciate the reality that it had been posted before s 30 of the MCE Act commenced, and re-posting the Roster in ‘draft’ is, arguably, artificial. Further, such action potentially falls foul of the rostering requirement under the Western Australia Police Force Industrial Agreement 2021 such as:
Rosters will be posted at each work area no later than 1300 hrs on the Tuesday preceding the week to be worked, except fortnightly rosters which shall be posted at each place of employment no later than 1300 hrs on the Tuesday preceding the fortnight to be worked. Western Australia Police Force Industrial Agreement 2021 cl 12(4)(c).

80 The 25 and 27 February Broadcasts when read together, along with Supt Thompson’s conversation and the option to submit an application refusing to work on 3 March 2025, left ‘room for negotiation and discussion’, being an essential ingredient for the purposes of s 30(2) of the MCE Act. OS MCAP [33].

81 The 25 and 27 February Broadcasts provided the capacity to refuse to work on 3 March 2025 by the lodging the public holiday application, including for those employees who were already subject to a posted roster. Therefore, the Roster was not a fait accompli.
Was the Request Reasonable?
82 At the outset, it is not for the Court to secondguess the operational requirements of the WA Police. The Court is not vested or charged with the general control and management of the WA Police, which is solely within the responsibility of the Commissioner of Police who is responsible for, amongst other things, community safety within the State of Western Australia (not just in the Perth metropolitan area). Section 5 of the Police Act.
This much was recognised in Falconer v Commissioner of Police [No 2] [2024] WASCA 47 at [218] and [221] and Western Australian Police Union of Workers v Commissioner of Police [2021] WAIRC 47; (2021) 101 WAIG 293 at [306] (Western Australian Police Union of Workers v Commissioner of Police).
83 The claimant asserts that because he worked in a particular role and this role did not require him to provide an essential service to the community on 3 March 2025, the request for him to work was not reasonable. Substituted Claim [15.d], [15.g], [15.h].
The Claim further asserts that the Commissioner of Police and Supt Thompson knew Mr Dinsdale was not required to perform essential duties to provide protection to the community on 3 March 2025. That is, the Commissioner of Police’s request for Mr Dinsdale to work on 3 March 2025 was not reasonable because Mr Dinsdale worked in a non-operational area, which did not require him to work on anything urgent or provide an essential service, and he left two hours early.
84 Mr Dinsdale’s apparent assertion that the assessment of reasonableness attaches to him personally or to the role he occupies on a public holiday is, arguably, misplaced. It is at best but one of a number of factors for consideration under s 30(4) of the MCE Act.
85 Section 30(4) of the MCE Act provides for a number of factors to be considered in determining whether a request (or refusal) is reasonable (as set out above at [54]).
86 Section 30(5) of the MCE Act provides that subsection (4) does not limit the matters that may be taken into account in determining whether a request or refusal is reasonable.
The Nature and Conduct of the Employer’s Business or Operations
87 It is trite to say that the WA Police provide critical services in the State of Western Australia. It is also trite to say that the community expects the WA Police to respond to incidents in a timely manner. The more critical an incident, the greater the need to respond.
88 However, the Commissioner of Police does not have advance warning of the type of incident or incidents that may occur on any one day. The WA Police’s ability to attend at short notice depending on the nature of the incident or incidents (if there is more than one) and the exact number of police officers needed (taking into account those police officer who may call in sick at short notice) may not be known to the Commissioner prior to a public holiday commencing. Therefore, it is reasonable, and prudent, for the Commissioner of Police to retain surge capacity, even though the worstcase scenario, or even something less than the worstcase scenario, may not eventuate.
89 This may mean that sworn officers working in non-operational roles who are requested to work on a public holiday may be required to take up operational duties, or they may not.
90 The Commissioner of Police’s duty to the State of Western Australia would be compromised if the Commissioner could not provide sufficient operational police officers on a public holiday, including the availability of operational police officers who may occupy non-operational roles on that day. To that end, the role a particular police officer happens to occupy on a public holiday is less relevant than the requirements of the Commissioner of Police and the role of the WA Police as an essential service in this State.
91 In the Explanatory Memorandum, at [685]:
For example, where an employer’s operations operate on a 24/7 basis and there is requirement for a certain level of staffing, a request for an employee to work on a public holiday may be reasonable.
92 It hardly needs to be said that crime and catastrophe do not observe public holidays.
93 Mr Dinsdale’s suggestion that he could have been recalled to duty on 3 March 2025 is misguided. If Mr Dinsdale is absent from work because the day is a public holiday then the time is his own to do whatever he wants to do, for example, drink alcohol; go out on a boat; go for a walk; go away; or switch off his mobile phone. If he is required to be home and required to be available at short notice, then his time is not his own and he is subject to the direction of the Commissioner of Police and cannot do these things.
The Nature of the Employee’s Work
94 As already stated, it is not the role occupied by the police officer on a particular day that is of principal importance. In Mr Dinsdale’s circumstances, he was an operational police officer who could be directed by the Commissioner of Police to attend an incident or an operational area at short notice. Regulation 401 of the Police Force Regulations 1979 (WA).

95 On some level, Mr Dinsdale must have appreciated this because he carried a firearm and handcuffs in an office environment, notwithstanding his assertions that there was no or little expectation that he performs essential operational duties.
The Employee’s Personal Circumstances
96 The reasons for not wanting to work on 3 March 2025 provided in the Dinsdale PH Application were:
No critical duties are required in the position and majority of the Technology Portfolio are not required to work this date. I have family responsibilities at home (three children) who will be absent from school.
A form of leave is frequently used by officers on public holidays, the new legislation removes the requirements to take leave and stipulates it is an entitlement. It is reasonable to be absent for the public holiday. Exhibit 3, Agreed Document 2.

97 The first sentence of the second paragraph of the reasons re-state, in summary, the entitlement in s 30(1) of the MCE Act. The last sentence offers a conclusion.
98 The first paragraph comprises Mr Dinsdale’s reasons and they are that:
(1) there are no critical duties required to be undertaken on 3 March 2025 in the Technology Portfolio; and
(2) he has three children at home who will not be at school.
99 In terms of the first reason, as already stated, it is reasonable for the Commissioner of Police so as to meet community safety and expectations to have at the ready a suitable operational workforce. Mr Dinsdale was an operational police officer, who may have been called upon at any time on 3 March 2025 to perform operational duties. That he was not called upon to do so on 3 March 2025, does not undermine whatever requirements the Commissioner of Police considered necessary to meet a possible, but unknown, need.
100 In terms of the second reason, being that Mr Dinsdale has three children who would not be at school on 3 March 2025, there is no other detail or explanation of why this might have been problematic or difficult for Mr Dinsdale. Since there was limited information, Supt Thompson sought to clarify it, and Mr Dinsdale’s response was that while his wife was at home, it was unfair to her to care for them on her own.
101 Supt Thompson was not crossexamined on any other reason said to have been discussed by Mr Dinsdale, including whether he knew of, or was aware of, any medical condition affecting one of the children requiring close supervision and care. In circumstances where it was not put to Supt Thompson, Mr Dinsdale’s subsequent reference to it – raised for the first time in his witness statement for presumably the purpose of justifying the reasonableness of his refusal or not wanting to work – is of little, if any, weight.
102 I find that the reasons for not wanting to work (or refusing the request to work) on 3 March 2025 contained in the Dinsdale PH Application were not reasonable.
Whether the Employee Could Reasonably Expect that the Employer Might Request Work on the Public Holiday
103 Mr Dinsdale admitted he had worked on previous public holidays.
104 Given the nature of the service provided by the WA Police it was reasonable to expect that the Commissioner of Police may request an operational police officer, such as Mr Dinsdale, to work on 3 March 2025.
Entitlement to Some Form of Remuneration
105 In Western Australian Police Union of Workers v Commissioner of Police, at [315], Kenner SC (as he was then) explained: Notably, this decision was issued prior to the enactment of s 30 of the MCE Act.

An entitlement to six weeks’ annual leave for police officers, which is over the community standard of annual leave of four weeks, which has not changed since the early 1970s, is in recognition of the fact that police officers work on public holidays and regularly work shift work: Western Australian Police Union of Workers v The Hon. Minister for Police (1982) 62 WAIG 1401; Re Hospital Employees Conditions of Employment (State) Award [1976] AR 276. I should note however, that it is common ground in this matter that many police officers do not work shift work but are entitled to the same leave as officers who do. Generally, too, in cases where employees work in remote locations, additional annual leave is granted to compensate for factors of isolation and longer travel distances: Re Broken Hill City Council Employees Case (1963) 5 AILR 240. This applies under the [Western Australia Police Industrial Agreement 2017].
106 It needs to be borne in mind that a police officer remains entitled to six weeks’ annual leave notwithstanding whether the officer is entitled to be absent from work on a public holiday under s 30(1) of the MCE Act.
107 Further, Mr Dinsdale continued to be entitled to six weeks’ annual leave notwithstanding that the non-operational role in the Technology Division did not require him to work shifts.
108 Further, in Western Australian Police Union of Workers v Commissioner of Police, at [258], it was recognised that the annualised salary of police officers included payment for working on public holidays:
There is some variation between jurisdictions as to payment for public holidays. In the case of Queensland, the Northern Territory, and Tasmania, as in Western Australia (see (1990) 70 WAIG 2187), payment for public holidays is included in an officer’s annualised salary. Different arrangements apply in Victoria, New South Wales, South Australia and for the Australian Federal Police.
Type of Employment
109 The fact Mr Dinsdale was working Monday to Friday day shifts is a neutral factor.
The Amount of Notice by Employee and Employer
110 The Commissioner of Police gave short notice in making the request for employees, including Mr Dinsdale, to work on 3 March 2025.
111 However, given the relatively tight time frames involved and the need to have the Roster posted in advance, this factor is less significant in the circumstances.
112 Further, the amount of notice as it relates to an employer might be dependent on events outside of the employer’s control. By way of example, an employer might request an employee to work on a public holiday at short notice because another employee has called in sick at short notice.
113 I also note that the Explanatory Memorandum suggests the amount of notice by an employee may be relevant to the reasonableness of a refusal. That is, the more notice by an employee of the need to be absent on a public holiday, the more it may weigh in favour of their refusal to work on a public holiday as being reasonable. Explanatory Memorandum [686].

Any Other Factor
114 Mr Dinsdale raises two other factors:
(1) the nature of the role he occupied on 3 March 2025; and
(2) a lack of procedural fairness associated with the decision to refuse the Dinsdale PH Application.
115 As to the first factor, as already stated, Mr Dinsdale was an operational police officer. The fact that at the time he worked in a non-operational role did not preclude him from being directed to carry out an operational role on 3 March 2025 should the need have arisen.
116 The fact that he may not have previously carried out operational duties while in the Technology Division did not preclude any future requirement.
117 Further, Mr Dinsdale is not responsible for the overall management of the WA Police, and is not answerable to the community if operational duties cannot adequately be attended to because of a lack of resources.
118 As to the second factor, Mr Dinsdale says he was rostered to work on 3 March 2025 without discussing or genuinely considering the Dinsdale PH Application, and if he had been afforded procedural fairness then the Commissioner of Police ‘would have understood there was no reasonable basis to require [him] to work on [3 March 2025].’ Claimant’s written submissions lodged 20 March 2026 [46].

119 The Claim never identified a lack of procedural fairness in the posting of the Roster or in the decision to refuse the Dinsdale PH Application. Further, Supt Thompson was not crossexamined on whether he did not ‘genuinely’ consider the Dinsdale PH Application. Nor was he crossexamined on whether he rejected the Dinsdale PH Application ‘without considering or addressing [Mr Dinsdale’s] circumstances’. Claimant’s written submissions [47].

120 What the facts demonstrate is that an application process was in place, Supt Thompson discussed the 25 February Broadcast and expected an application to be submitted by the sworn officers, including Mr Dinsdale, and Mr Dinsdale submitted the Dinsdale PH Application.
121 To the extent Mr Dinsdale now complains that the reasons given by Supt Thompson for refusing the Dinsdale PH Application referred to ‘generalised observations about working arrangements in WA Police broadly’, Claimant’s written submissions [47].
the reasons given in the Dinsdale PH Application were also general, brief and lacked any detail.
122 Further, while the reasons provided by Supt Thompson in refusing the Dinsdale PH Application are not under review (the request having been made earlier in time), the reasons may be relevant in assessing the earlier request made by the Commissioner of Police and the reasonableness of this request. To that end, the email from Supt Thompson to Mr Dinsdale on 28 February 2025 expressly refers to the Dinsdale PH Application and to their discussion, and informs Mr Dinsdale that he has considered the Dinsdale PH Application and the factors in s 30(4) of the MCE Act. Supt Thompson also explains the reasons for refusing the Dinsdale PH Application in the 28 February 2025 email. Exhibit 3, Agreed Document 4.

123 To the extent Mr Dinsdale now complains ‘the notification’ did not invite further discussion of his request not to work, Claimant’s written submissions [47].
this is simply not the case. Supt Thompson had asked Mr Dinsdale for more information about his family responsibilities and was told it was not fair for his wife to look after their children. It was open to Mr Dinsdale to expand on his reasons in the Dinsdale PH Application or to Supt Thompson if he wanted to do so. He did not.
Determination on Reasonableness
124 Having regard to all of the factors referred to, I find on balance that the request by the Commissioner of Police for Mr Dinsdale to work on 3 March 2025 was reasonable.
Outcome on Section 30 of the MCE Act
125 Having regard to the findings of fact made, I am satisfied that:
(a) the Commissioner of Police made a request for Mr Dinsdale, and other police officers, to work on 3 March 2025; and
(b) the request made by the Commissioner of Police was reasonable; and
(c) the reasons for Mr Dinsdale not wanting to work (or for refusing the request) were not reasonable.
126 Therefore, I am not satisfied the Commissioner of Police contravened Mr Dinsdale’s entitlement to be absent from work on a public holiday under s 30(1) of the MCE Act. Put another way, Mr Dinsdale has not proven to the requisite standard that the Commissioner of Police contravened his entitlement to be absent from work on 3 March 2025.
Other Orders Sought in the Claim
127 Mr Dinsdale sought an order preventing the respondent from further contravening s 30 of the MCE Act under s 83(5) of the IR Act and the imposition of a penalty for an alleged serious contravention of s 30(1) of the MCE Act.
Preventing Any Further Contravention
128 Section 83(5) of the IR Act provides that if a contravention of an entitlement provision is proved, then the Court may, in addition to imposing a penalty under s 83(4), make an order for the purpose of preventing any further contravention of the provision.
129 Notwithstanding that a contravention of s 30(1) of the MCE Act was not proven, it is unclear from the Claim what exactly Mr Dinsdale is seeking for the Court to order that would prevent any hypothetical further contravention.
130 Based on the 25 and 27 February Broadcasts, the Commissioner of Police was aware of: the recent change to the MCE Act, the need for a request to be made, and that some rosters had been published prior to the amendments taking effect. The WA Police were in the process of updating their manuals, guidelines and human resources systems to accommodate the change in legislation. In the meantime, there was a process in place for dealing with those employees that did not want to work on 3 March 2025 who were already subject to a roster. All of this information was made available to employees, including sworn police officers.
131 In those circumstances, and where Mr Dinsdale did not articulate what orders he sought, there is no basis for an order under s 83(5) of the IR Act in any event.
Serious Contravention
132 Section 83(4) of the IR Act provides that if a contravention is proven, then the Court may impose a pecuniary penalty under s 83(4A) if the contravention is a serious contravention. The penalty amount is higher than for a contravention that is not a serious contravention. An interesting question arises as to whether the Commissioner of Police is a body corporate for the purposes of s 83(4A)(a)(i) or an individual for the purposes of s 83(4A)(b)(i) of the IR Act. However, this issue never formed part of any argument or submission by the parties so it is best left for another day.
133 Section 83EA(2) provides for when a contravention is a serious contravention, if:
(a) the person knowingly commits the contravention; or
(b) the person is reckless as to whether the contravention would occur.
134 Mr Dinsdale alleged that the Commissioner of Police was aware of their obligations under the MCE Act and had access to specialist legal and employee relations advice. Therefore, the Commissioner of Police was aware of a substantial risk of contravening s 30(1) and s 30(2) of the MCE Act.
135 Leaving aside that there is no contravention attaching to s 30(2) of the MCE Act, there is no evidentiary foundation or basis that could in any way ground a finding that the Commissioner of Police knew that their actions contravened s 30(1) of the MCE Act or was reckless to the prospect that their actions would likely contravene s 30(1) of the MCE Act, and proceeded to contravene s 30(1) of the MCE Act in any event.
136 With respect to Mr Dinsdale, this part of his claim does not rise above a mere assertion, and the Claim did not plead any facts for, nor did the evidence establish, a basis for the assertion that a serious contravention occurred.
Outcome
137 Pursuant to s 83(4)(b) of the IR Act, the Claim is dismissed.




D. SCADDAN
INDUSTRIAL MAGISTRATE

SCHEDULE I: Jurisdiction, Practice and Procedure of the Industrial Magistrates Court of Western Australia Under the Industrial Relations Act 1979 (WA)
Jurisdiction
[1] The IMC has jurisdiction to hear and determine an application that a person has contravened an entitlement provision, and a person may apply to the IMC for the enforcement of an entitlement provision under the MCE Act: s 81A and s 83(1)(e)(ii) of the IR Act and s 7 of the MCE Act.
[2] On hearing an application under s 83(1) of the IR Act, the IMC may, if the contravention is proven, order a pecuniary penalty under subsection (4A) or dismiss the application.
[3] Pursuant to s 83(4A) of the IR Act, 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, $930,000; or (ii) if the contravention is not a serious contravention, $93,000; and
(b) in the case of an individual: (i) if the contravention is a serious contravention, $180,000; or (ii) if the contravention is not a serious contravention, $18,000.
Burden and Standard of Proof
[4] Where a person alleges contravention of an entitlement provision, the person carries the burden of proving the contravention. The standard of proof required to discharge the burden is proof ‘on the balance of probabilities’: s 83E(8) of the IR Act.
[5] In Miller v Minister of Pensions [1947] 2 All ER 372, 374, Lord Denning explained the standard in the following terms:
It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not,’ the burden is discharged, but, if the probabilities are equal, it is not.
[6] Where in this decision it is stated that a finding has been made, the finding is made on the balance of probabilities. Where it is stated that a finding has not been made or cannot be made, then no finding can be made on the balance of probabilities.
Practice and Procedure of the Industrial Magistrates Court of Western Australia
[7] Subject to the provisions of the IR Act, the procedure of the IMC relevant to applications under s 83(1) of the IR Act is contained in the Industrial Magistrate's Court (General Jurisdiction) Regulations 2005 (WA) (IMC Regulations): s 113(3) of the IR Act. Notably, reg 35(4) of the IMC Regulations provides the court is not bound by the rules of evidence and may inform itself on any matter and in any manner as it thinks fit.
[8] In Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27, Commissioner Sleight examined a similarly worded provision regulating the conduct of proceedings in the State Administrative Tribunal and made the following observation:
The tribunal is not bound by the rules of evidence and may inform itself in such a manner as it thinks appropriate. This does not mean that the rules of evidence are to be ignored. The more flexible procedure provided for does not justify decisions made without a basis in evidence having probative force. The drawing of an inference without evidence is an error of law. Similarly such error is shown when the tribunal bases its conclusion on its own view of a matter which requires evidence [40]. (citations omitted)