2026 WAIRC 00757
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2026 WAIRC 00757



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
WEDNESDAY, 17 JUNE 2026



DELIVERED
:
THURSDAY, 30 JULY 2026



FILE NO.
:
M 158 OF 2025



BETWEEN
:
JOANNE VERSTEEG


CLAIMANT





AND





COMMISSIONER OF POLICE, WESTERN AUSTRALIA POLICE FORCE


RESPONDENT

CatchWords : INDUSTRIAL LAW - Minimum Conditions of Employment Act 1993 (WA) – Proper construction and application of section 33 of the Minimum Conditions of Employment Act 1993 (WA) – Meaning of period of paid annual and personal leave – Meaning of ordinarily work and ordinary hours – Effect on rostered employees
Legislation : Minimum Conditions of Employment Act 1993 (WA)
Industrial Relations Legislation Amendment Act 2024 (WA)
Industrial Relations Act 1979 (WA)
Industrial Magistrate's Court (General Jurisdiction) Regulations 2005 (WA)
Police Act 1982 (WA)
Fair Work Act 2009 (Cth)
Instrument : Western Australia Police Force Industrial Agreement 2024
Cases referred
to in reasons : City of Fremantle v Imago Holdings Pty Ltd [2020] WASCA 61
Director General, Department of Education v United Voice WA [2013] WASCA 287; (2014) 94 WAIG 1
WA Prison Officers’ Union of Workers v Minister for Corrective Services [2025] WASCA 177; (2025) 105 WAIG 2703
Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51; (2023) 297 FCR 323
Dinsdale v Commissioner of Police [2026] WAIRC 00306; (2026) 104 WAIG 995
Construction, Forestry, Mining and Energy Union v Glendell Mining Pty Ltd [2017] FCAFC 35; (2017) 249 FCR 495
Target Australia Pty Ltd v Shop, Distributive and Allied Employees’ Association [2023] FCAFC 66; (2023) 324 IR 304
Bluescope Steel (AIS) Pty Ltd v Australian Workers’ Union [2019] FCAFC 84; (2019) 270 FCR 359
Western Australian Police Union of Workers v Commissioner of Police [2021] WAIRC 00047; (2021) 101 WAIG 293
Miller v Minister of Pensions [1947] 2 All ER 372
Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27
Fedec v The Minister for Corrective Services [2017] WAIRC 00828; 97 WAIG 1595
Result : The claim is dismissed
Representation:
Claimant : Mr S. Farrell (Industrial Agent)
Respondent : Mr J. Carroll (of counsel)



REASONS FOR DECISION
Background
1 This case concerns primarily the interaction between ordinary hours of work and being on annual leave for the purposes of any statutory entitlement of employees under s 33 of the Minimum Conditions of Employment Act 1993 (WA) (MCE Act).
2 Sections 31 and 33 were inserted into the MCE Act as part of a suite of amendments introduced by the Industrial Relations Legislation Amendment Act 2024 (WA), which commenced on 31 January 2025.
3 Joanne Versteeg (Ms Versteeg) was a sworn non-commissioned police officer working in an operational policing role when on 3 March 2025, a public holiday (Labour Day), she claims the Commissioner of Police (or, the respondent) contravened the terms of s 31 and/or s 33 of the MCE Act by:
(a) taking her to be on a weekly leave day on the public holiday which is a day that she would ordinarily have worked; and
(b) (presumably) deducting a period of annual leave on a day that she was entitled to be paid on a public holiday (the Claim). See generally, the originating claim lodged on 19 November 2025.

4 While it was not precisely identified in the originating claim, it is assumed Ms Versteeg 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).
5 Sections 31 and 33 of the MCE Act are within Part 4, Division 5 of the MCE Act relating to minimum leave conditions for public holidays. 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).

6 An entitlement under Part 4 of the MCE Act relating to a public holiday includes (relevantly):
(i) to be absent from work on a public holiday; or
(ii) to be paid if absent from work on a public holiday; or
(iii) to refuse (on reasonable grounds) a request to work on a public holiday. Section 3 of the MCE Act – definition of ‘minimum condition of employment’ paragraph (g).

7 Ms Versteeg seeks the following orders:
(a) a finding that the Commissioner of Police contravened s 33 of the MCE Act;
(b) that the respondent credit her annual leave balance with 10 hours of annual leave;
(c) that pursuant to s 83(5) of the IR Act, the respondent be ordered to prevent further contraventions;
(d) the imposition of a pecuniary penalty under s 83E(1)(a)(i) of the IR Act for the contravention of s 33 of the MCE Act; and
(e) any other order the Court deemed appropriate.
8 Schedule I to these reasons is the jurisdiction, practice, and procedure of the IMC under the IR Act.
Agreed Facts Exhibit 1 – Agreed Facts and Documents.

9 Ms Versteeg 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, Ms Versteeg was a sworn police officer but at the time of the hearing it is understood that she had resigned from her engagement.
10 On 24 February 2025, a delegate of the Commissioner of Police posted a roster for the period 3 to 16 March 2025 (the Roster), which included a public holiday on 3 March 2025. Exhibit 1, Agreed Document 1.
A copy of the Roster is attached to these reasons at Schedule III, but displays Ms Versteeg’s roster as:
Mon 03/03
Tues 04/03
Wed 05/03
Thurs 06/03
Fri 07/03
Sat 08/03
Sun 09/03
X
X
X
AL
AL
AL
AL

Mon 10/03
Tues 11/03
Wed 12/03
Thurs 13/03
Fri 14/03
Sat 15/03
Sun 16/03
X
AL
AL
AL
AL
X
X
11 In the period 24 February 2025 to 16 March 2025, Ms Versteeg was on approved annual leave. Over the period 3 to 9 March 2025, the Commissioner of Police deducted 40 hours of annual leave from Ms Versteeg’s annual leave balance.
12 Ms Versteeg’s work area is subject to a standard roster type as defined in cl 11.4 of the Western Australia Police Force Industrial Agreement 2024 (the Agreement), and her hours of duty can be rostered on any day in a weekly period.
13 To those agreed facts, I would also add the following.
14 Pursuant to s 6A, the MCE Act applied to Ms Versteeg as if she was an employee and to the Commissioner of Police as if the Commissioner was an employer of Ms Versteeg. Section 6A of the MCE Act.

15 On 3 March 2025, Ms Versteeg was allocated to the Special Operations Applications Unit (SOAU).
Other Evidence
16 Ms Versteeg relied upon her witness statement signed on 13 May 2026. Exhibit 2 – witness statement of Joanne Versteeg signed on 13 May 2026.
In addition to the agreed facts, Ms Versteeg attached several other rosters when she was working in the SOAU for periods in which there were public holidays in 2024 and January 2025. Exhibit 2 [9], attachments 1  10.

17 She summarises these public holidays in table form as follows: Exhibit 2 [10].

Public holiday
Date
Worked or Weekly Leave
New Year’s Day (2024)
1 January 2024
Worked
Australia Day
26 January 2024
Worked
Labour Day
4 March 2024
Worked
Good Friday
29 March 2024
Worked
Easter Sunday
31 March 2024
Weekly Leave
Easter Monday
1 April 2024
Worked
Anzac Day
25 April 2024
Worked
WA Day
3 June 2024
Weekly Leave
King’s Birthday
23 September 2024
Weekly Leave
Christmas Day
25 December 2024
Worked
Boxing Day
26 December 2025
Worked
New Year’s Day (2025)
1 January 2025
Weekly Leave
Australia Day (2025)
27 January 2025
Weekly Leave
18 On 23 February 2026, she sent an email to the WA Police personnel services inbox advising of her intention to retire from the WA Police on 2 July 2026 and that she intended on clearing her accrued leave before retirement. Exhibit 2 [12].

19 On 24 February 2026, WA Police personnel services informed her that a leave clearance plan had been created for her based on a roster of eight hours per day from Monday to Friday. Exhibit 2 [14].

Submissions
Claimant
20 Ms Versteeg submits that s 31(1) of the MCE Act applies to an employee who is absent from work on a public holiday, other than an employee who would not ‘ordinarily’ work on the public holiday. Ms Versteeg emphasises Parliament’s use of the word ‘ordinarily’ and refers to the Explanatory Memorandum to the Industrial Relations Legislation Amendment Bill 2024, at [690], where an example of what was intended by s 31(1)(b) by reference to a part-time employee whose ordinary rostered hours do not include Mondays. In that circumstance, the employee would not be entitled to be paid for a public holiday that fell on a Monday.
21 Ms Versteeg relies upon the dictionary meaning of the word ‘ordinary’ and submits that, because she was a full-time employee; and could be rostered on any day of the week and had worked on the majority of public holidays during the preceding 12 months, s 31(1) of the MCE Act applied throughout the period of annual leave, including on 3 March 2025.
22 Ms Versteeg further submits that, apart from any administrative requirement to record leave, it was unnecessary for the Commissioner of Police to roster her for any part of the period during which she was on annual leave. She contends that the Commissioner of Police retained a discretion as to which days were designated as weekly leave and that it would be an absurd construction of the legislation if Parliament intended an employer’s liability to pay a full-time employee for a public holiday to depend upon the employer’s unilateral rostering decisions.
23 In oral submissions, Ms Versteeg’s counsel explained that she was not paid for the public holiday on 3 March 2025 because she was not rostered to work on that day. He reiterated that she must be paid for the public holiday on 3 March 2025 because she was on a period of annual leave that included this day. ts 8  9.

24 That is, on counsel’s submission, Ms Versteeg should have been paid 10 hours of ordinary pay for 3 March 2025 and had 30 hours of annual leave deducted, whereas she had 40 hours of annual leave deducted. Ms Versteeg seeks the reinstatement of the 10 hours of annual leave or the equivalent payment. ts 10.

25 It was further submitted that Ms Versteeg was required to be paid as if she worked on 3 March 2025 and the only exception was if she did not ordinarily work on that day, again referring to the part-time employee example mentioned in the Explanatory Memorandum. ts 11. See also ts 5  6.

Respondent
26 The respondent submits that the facts do not support the Claim. That is, for the fortnight 3 March 2025 to 16 March 2025, Ms Versteeg was rostered to work on 6, 7, 8, 9, 11, 12, 13, and 14 March 2025. She was not rostered to work on 3 March 2025.
27 Ms Versteeg was on paid annual leave on 6, 7, 8, 9, 11, 12, 13, and 14 March 2025. There is no evidence to suggest the Commissioner of Police deducted Ms Versteeg’s annual leave accruals for 3 March 2025.
28 Further, there is no suggestion that Ms Versteeg was paid other than what she ordinarily would have been paid if there was no public holiday during that fortnight of work. Where Ms Versteeg was not rostered to work on 3 March 2025, she was not ‘absent from work’ under s 31 of the MCE Act.
29 Accordingly, there is no basis to find the Commissioner of Police contravened s 31 or s 33 of the MCE Act.
30 In oral submissions, the Commissioner of Police’s counsel noted that the relief sought in the Claim was the re-crediting of 10 hours of annual leave where Ms Versteeg says that annual leave was deducted for 3 March 2025 when it ought not to have been. However, there was no evidence that Ms Versteeg received anything less than what she was entitled to. ts 16.

31 Further, in response to Ms Versteeg’s written submissions, there was no evidence the Roster was a sham, if Ms Versteeg was now suggesting the Commissioner of Police orchestrated rosters so as to escape some liability under the MCE Act. The suggestion that the Roster was a sham was subsequently disavowed by Ms Versteeg’s counsel. ts 16, referring to the claimant’s written outline of submissions dated 29 May 2026 [16]; ts 19.
That is, pursuant to the Roster, Ms Versteeg was rostered to work on days other than 3 March 2025, she was not rostered to attend work on 3 March 2025, she did not attend work on 3 March 2025, and no leave was deducted.
32 Counsel identified that the fundamental issue was whether or not an employee would ordinarily work on 3 March 2025 (the public holiday the subject of the Claim). Ms Versteeg’s case is that because a police officer can be rostered on any day of the week, they ‘ordinarily’ work on public holidays. ts 17.

33 The Commissioner of Police submits that this is not the proper approach to s 31 and s 33 of the MCE Act. The proper approach is to determine whether the employee would have ordinarily worked on the particular public holiday, which for a rostered employee requires consideration of the particular roster. In Ms Versteeg’s case, she was not rostered to work on 3 March 2025 and, therefore, would not have ordinarily worked on the public holiday. The entitlement provisions relating to 3 March 2025 has no application to Ms Versteeg. ts 17.

Issue for Determination
34 In short, the principal issue for determination is the proper construction and application of s 33 of the MCE Act.
35 Based on Ms Versteeg’s submissions and the Claim, in part what Ms Versteeg appears to contend is that an employer who prepares a roster for a period during which a public holiday occurs and during which the employee takes annual leave, should (or can) roster (or refrain from rostering) the employee in a manner that takes into account s 33 of the MCE Act. That is, a roster incorporating a period of annual leave is an administrative tool and the allocation of working days and non-working days is unnecessary where the effect is that the employee is on leave for the entire time. If this period also incorporates a public holiday, then the employer is required to defer to s 33(1) of the MCE Act, irrespective of whether the public holiday falls on a working day or non-working day.
36 Following from this, Ms Versteeg must be saying that a proper construction of s 33 of the MCE Act incorporates that an employer’s rostering discretion is constrained by an obligation to adopt a roster which gives effect to the public holiday entitlements provided by the MCE Act, or at least to roster employees in a manner that preserves or maximises those entitlements.
The MCE Act
37 In addition to determining the preferred construction of s 33 of the MCE Act, the Claim involves consideration of certain terms of the Agreement.
38 The general principles of statutory construction are well-known, and many cases contain a summary of those principles. I refer to the summary in City of Fremantle v Imago Holdings Pty Ltd [2020] WASCA 61, at [66]:
It is sufficient to repeat the outline in Mohammadi v Bethune:
Statutory construction requires attention to the text, context and purpose of the Act. While the task of construction begins and ends with the statutory text, throughout the process the text is construed in its context. Statutory construction, like any process of construction of an instrument, has regard to context. As Kiefel CJ, Nettle and Gordon JJ recently explained in SZTAL: 
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.
The objective discernment of the statutory purpose is integral to contextual construction. The statutory purpose may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose must be discerned from what the legislation says, as distinct from any assumptions about the desired or desirable reach or operation of relevant provisions.
Discernment of statutory purpose is particularly significant in cases, commonly encountered, where the constructional choice presented is from ‘a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural’. In such a case, the choice ‘turns less on linguistic fit than on evaluation of the relevant coherence of the alternatives with identified statutory objects or policies’. …
Thus, the material provisions of the Act must be understood, if possible, as parts of a coherent whole.
Statutory texts enacted by the same legislature are to be construed, so far as possible, to operate in harmony and not in conflict. Where two or more statutory enactments comprise the overlapping legislative scheme, the enactments should be construed accordingly, and the court should endeavour to produce a rational, sensible, efficient and just operation in preference to an inefficient, conflicting or unjust operation.
(citations omitted)
39 The general principles concerning the construction of industrial agreements were summarised by Buss J in Director General, Department of Education v United Voice WA [2013] WASCA 287; (2014) 94 WAIG 1 at [81] to [83]. See also the summary by Smith AUJ in WA Prison Officers’ Union of Workers v Minister for Corrective Services [2025] WASCA 177; (2025) 105 WAIG 2703 (WAPOUW v Minister for Corrective Services) [44]  [58].

40 Schedule II to these reasons also summarises the principles applicable to the construction of industrial agreements.
Statutory Framework
41 Section 5(1) of the MCE Act provides that the minimum conditions of employment extend to and bind all employees and employers and cannot be displaced by an industrial instrument or contract of employment, although s 5(2) contemplates more favourable conditions of employment to the minimums provided under the Act with less favourable conditions to have no effect. See generally comments made by Smith AUJ in WAPOUW v Minister for Corrective Services [62]. While this decision was published prior to the insertion of the new sections relating to public holidays, her Honour’s comments regarding s 5 of the MCE Act remain relevant.

42 Section 30(1) 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.
43 Modelled on similar provisions contained in the Fair Work Act 2009 (Cth) (FWA), Section 114 of the FWA.
s 30(1) of the MCE provides that in the first instance an employee is entitled to be absent from work on a public holiday, although this entitlement is not absolute. See s 30(2) of the MCE Act; Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51; (2023) 297 FCR 323; Dinsdale v Commissioner of Police [2026] WAIRC 00306; (2026) 104 WAIG 995.

44 Section 31 of the MCE Act provides:
31. Employee entitled to be paid for public holiday
(1) This section applies to an employee who is absent from work on a day or part of a day that is a public holiday in accordance with section 30, other than —
(a) a casual employee; or
(b) an employee who would not ordinarily work on the public holiday; or
(c) an employee who is on unpaid leave on the public holiday.
(2) The employee is entitled to be paid —
(a) as if the employee were required to work their ordinary hours on the public holiday; and
(b) at the rate the employee would have received as payment for those hours under an industrial instrument or contract of employment, whichever provides for the higher rate.
(3) No penalty rate or allowance is required to be taken into account in determining any rate of pay for the purposes of subsection (2)(b).
(4) This section and section 30 do not require an employer to pay a penalty rate for work done by an employee on a public holiday.
45 Section 33 of the MCE Act provides:
33. Employee taken not to be on paid annual leave or paid personal leave on public holiday
(1) This section applies if the period during which an employee takes paid annual leave or paid personal leave includes a public holiday that falls on a day the employee would ordinarily have worked.
(2) The employee —
(a) is taken not to be on paid annual leave or paid personal leave on that public holiday; and
(b) is entitled to be absent from work on that public holiday; and
(c) is entitled to be paid for that public holiday in accordance with section 31.
46 ‘Public holiday’ means a day mentioned in Schedule 1 of the MCE Act that is a public holiday which, relevant to the Claim, includes Labour Day or 3 March 2025. Section 3(1) of the MCE Act – definition of ‘public holiday’ and Schedule 1.

47 ‘Annual leave’ means leave provided under Division 3, Part 4 of the MCE Act. Section 3(1) of the MCE Act – definition of ‘annual leave’.

48 ‘Personal leave’ means leave taken by an employee:
(a) because of personal circumstances Section 19 of the MCE Act – definition of ‘personal circumstances’.
affecting the employee; or
(b) to provide care or support to a member of the employee’s family or household because of personal circumstances affecting the member. Section 19 of the MCE Act – definition of ‘personal leave’.

49 Part 4, Division 3 of the MCE Act contains the minimum entitlement for paid annual leave.
50 Section 23(1) of the MCE Act provides that:
For each year of service, an employee (other than a casual employee) is entitled to paid annual leave for the number of hours the employee is ordinarily required to work in a 4-week period during that year, up to a maximum of 152 hours.
51 In summary, save for casual employees, in each year an employee is entitled to paid annual leave for the number of hours the employee is ordinarily required to work in a four-week period, up to a maximum of 152 hours. This entitlement accrues pro rata on a weekly basis and is cumulative. Section 23(1) and s 23(2) of the MCE Act.

52 That is, if an employee ordinarily works a 38hour week, then the hours ordinarily worked in a fourweek period is 152 hours (the maximum provided under the MCE Act) and the employee is entitled to 152 hours of paid annual leave for the year of service (and each thereafter). If an employee works a 25hour week, then the hours ordinarily worked in a fourweek period is 100 hours and the employee is entitled to 100 hours of paid annual leave for the year of service (and each thereafter).
Some General Principles
53 When read with s 5(1) of the MCE Act, the operation of s 31 and s 33 apply generally to all employees and employers and save for in limited circumstances, their operation cannot be displaced by an industrial instrument or contract of employment.
54 It follows that the proper construction of s 33 of the MCE Act, and any principles governing its application, must be capable of operating uniformly across the diverse employment arrangements to which the MCE Act applies. Therefore, these provisions must apply irrespective of whether an employee works regular weekday hours, performs shift work, works on a rotating roster, or is employed in any industry or occupation within Western Australia.
55 Further, the proper construction of s 33 of the MCE Act must be consistent with the purpose of the legislation and harmonious with the other minimum conditions established by the MCE Act, including s 31.
56 In general terms, the MCE Act provides minimum conditions of employment for types of leave, rates of pay, redundancy, flexible working arrangements and maximum hours of work (subject to any industrial agreement terms and s 9B of the MCE Act).
57 The purpose of the MCE Act is to ensure that employees receive a minimum and fair set of employment conditions and that employers cannot contract out of, or provide conditions less favourable than, those statutory minimum standards. See s 2A of the MCE Act for the objects of the Act.

58 In terms of reasonable hours of work under Part 2A, s 9A(1) of the MCE Act provides that an employee is not to be required or requested by an employer to work more than:
(a) either —
(i) the employee’s ordinary hours of work as specified in an industrial instrument that applies to the employment of the employee; or
(ii) if there is no industrial instrument that specifies the employee’s ordinary hours of work, 38 hours per week;
and
(b) reasonable additional hours as determined under section 9B.
59 Section 9A(2) of the MCE Act provides that for the purposes of calculating the number of hours an employee has worked in a particular week, the hours worked are taken to include any hours of authorised leave taken by the employee during the week. In general terms, authorised leave means leave or an absence that is authorised to be taken, either paid or unpaid. Section 9A(4) of the MCE Act.

60 An industrial instrument may provide that an employee’s ordinary hours of work is less or more than 38 hours per week. Section 9A(1)(a)(i) of the MCE Act.
This is the case under the Agreement where the ordinary hours of work are 40 ordinary hours per week or 80 hours ordinary hours per fortnight. Exhibit 1 [6], referring to clause 11.4 of the Agreement.

Section 31 and Section 33 of the MCE Act
61 When s 31 and s 33 of the MCE Act are read together and with s 30:
(a) section 30 creates the entitlement to be absent from work on a public holiday;
(b) section 31 applies where an employee is absent because of that entitlement (subject to the exclusions in s 31(1)(a)–(c));
(c) once s 31 applies, the employee must be paid as though they had worked their ordinary hours on that day;
(d) the employee is paid for the ordinary hours they would have worked;
(e) the applicable rate of payment is referable to the payment of those hours under an industrial instrument or contract of employment, although the employer is not required to pay penalty rates or allowances;
(f) section 33 applies if there is a period where the employee is on paid annual or personal leave and there is a public holiday on a day that they would have ordinarily worked during this period;
(g) if s 33 applies, the public holiday displaces the paid annual or personal leave, and the day is converted from a paid annual or personal leave day to a public holiday; and
(h) the employee is paid under s 31 rather than under the paid annual or personal leave provisions.
62 The practical consequence of s 33 of the MCE Act is that when a public holiday occurs during a period of paid annual or personal leave the employee does not have annual or personal leave deducted for that day and the day is treated as a public holiday and they are paid in accordance with s 31 of the MCE Act.
63 Section 33 of the MCE Act does not create a separate payment or leave entitlement. Rather, it redirects the employee from the paid annual or personal leave provisions to the public holiday provisions, with payment then determined under s 31.
64 The purpose of s 33 of the MCE Act is to ensure that an employee’s entitlement to paid annual or personal leave is not diminished merely because a public holiday falls during a period of annual or personal leave on a day the employee would otherwise have been required to work. In that way, the public holiday does not consume or reduce the employee’s accrued annual or personal leave entitlement. This purpose is also reflected in the Explanatory Memorandum to the Industrial Relations Legislation Amendment Bill 2024 at [698].

65 However, two questions arise in respect of s 33(1):
(1) What is meant by ‘the period’ during which an employee takes paid annual or personal leave?
(2) What is meant by ‘ordinarily have worked’ on a day that is a public holiday?
66 The similar words ‘ordinarily work’ also appear in s 31(1)(b) of the MCE Act in relation to an employee who does not work on the public holiday.
What is the Period of Annual or Personal Leave?
67 The Full Court of the Federal Court of Australia in Construction, Forestry, Mining and Energy Union v Glendell Mining Pty Ltd [2017] FCAFC 35; (2017) 249 FCR 495 (Glendell Mining) considered the effect of paid annual leave when a public holiday occurs during the same period.
68 While the issue was not exactly the same, it involved consideration of s 89(1) of the FWA, which echoes a similar sentiment to s 33 of the MCE Act. Section 89(1) provides:
If the period during which an employee takes paid annual leave includes a day or part-day that is a public holiday in the place where the employee is based for work purposes, the employee is taken not to be on paid annual leave on that public holiday.
69 Section 89(1) of the FWA is a minimum standard or entitlement pursuant to s 61(2) of the FWA as it is one of the National Employment Standards (NES).
70 As part of the discussion of why they rejected the appellant’s construction of the interaction between the relevant enterprise agreement and s 88 and s 89 of the FWA, White and Bromwich JJ in Glendell Mining (with whom Siopis J agreed), at [131] to [133], referred to the way in which the ‘ordinary hours of work’ are performed in a sevenday roster of 12hour shifts (as was applicable to the affected worker):
[The roster shows] the employees working 14 days out of each 28 days in sequences of two or three consecutive days separated by days off which are also in sequences of two or three consecutive days. The employees work three and four shifts per week in alternating weeks. Accordingly, when employees have a week of paid annual leave to which the NES or the [enterprise agreements] apply, they are relieved from working the three or four shifts in each week, as the case may be, which they would otherwise have worked in that week.
Under the NES, the entitlement to four weeks paid annual leave means that employees may have 14 shifts away from work…
This approach is consistent with that adopted by the Full Bench in the Fair Work Commission in RACV Road Service Pty Ltd v Australian Municipal, Administrative, Clerical and Services Union [2015] FWCFB 2881 [at [32] and [82]]:
[W]e consider that a ‘week’ of leave is to be understood as meaning an authorised absence from the working days falling in a seven day period, and a ‘day’ of leave is an authorised absence from the working time in a 24 hour period…
Accordingly we conclude that in the NES provisions of the [FWA], a ‘week’ of annual leave is an authorised absence from work during the working days falling a seven day period, and a ‘day’ of leave (whether of annual or personal carer’s leave) is an authorised absence from the working time in a 24 hour period. We reject RACV’s submission that ‘week’ and ‘day’ are to be read as terms of art referring to a specific number of working hours that may not constitute an actual week or day in a given case. We further conclude that the amount of leave deducted from an employee’s leave balance necessarily correlates with the amount of leave taken. Glendell Mining [131]  [133] (White and Bromwich JJ), [5] (Siopis J agreeing).

71 Paid annual leave is commonly understood to be paid time during which an employee is relieved from the obligation to attend work, ordinarily for rest and recreation. Consistent with authorities concerning annual leave entitlements in the federal jurisdiction, the expression ‘the period during which an employee takes paid annual leave’ in s 33(1) of the MCE Act refers to the period for which the employee is paid not to be at work when they are having rest and recreation. It does not extend to periods during which the employee would not otherwise have been required to work.
72 For an employee who works regular weekday hours, the relevant period of paid annual leave comprises the weekdays during which the employee is absent on paid annual leave and excludes Saturdays and Sundays on which the employee does not work. For an employee who works on shift work or works on a rotating roster, the relevant period comprises those shifts or rostered days that the employee would otherwise have been required to work and for which annual leave is taken and excludes days or shifts on which the employee was not rostered to work.
73 This interpretation of a period of annual leave is also consistent with what is understood by a period of personal leave, bearing in mind both types of leave are referred to in s 33 of the MCE Act.
74 Paid personal leave, as provided in the MCE Act, can be taken when personal illness or injury affects the employee or a member of their family, and can be taken at short notice. Pursuant to s 20A of the MCE Act, paid personal leave is taken when the employee is unable to work because of their personal circumstances. Therefore, an employee can only be on paid personal leave during a period of when they otherwise would be working. That is, days off from work do not form part of the period of paid personal leave.
What is Meant by ‘Ordinarily Work’ and ‘Ordinarily Have Worked’?
75 The MCE Act does not define ‘ordinarily work’ or ‘ordinarily have worked’. Where both expressions appear in Part 4, Division 5, which deals with minimum conditions relating to public holidays, it is presumed that Parliament intended the expressions to have a consistent meaning.
76 The word ‘ordinarily’ means ‘usually’ or ‘normally’ or ‘commonly’ and in the context of an employment relationship, likely means what usually or normally occurs rather than what might occur exceptionally or by agreement on a particular occasion.
77 However, what may occur usually or normally for one employee, may not occur usually or normally for another. Therefore, contextually, an employee’s particular circumstances will be relevant rather than only by reference to some general idea of the working week.
78 The most straightforward example is an employee who works regular weekday hours, where the normal or usual days of work are Monday to Friday. In contrast, for a shift worker or an employee working on a rotating roster, the normal or usual days of work will depend upon the particular arrangements governing the employment, including any applicable contract of employment, roster, industrial instrument or established pattern of work.
79 In Target Australia Pty Ltd v Shop, Distributive and Allied Employees’ Association [2023] FCAFC 66; (2023) 324 IR 304 (Target), the Full Court considered the common uses of the expressions ‘ordinary time’, ‘ordinary hours’ and ‘ordinary rate’ in industrial agreements in the context of the meaning of ‘ordinary time earnings’.
80 At [10] to [12], Bromberg J (with whom Jackson and Feutrill JJ agreed) referred to Allsop CJ’s comments in Bluescope Steel (AIS) Pty Ltd v Australian Workers’ Union [2019] FCAFC 84; (2019) 270 FCR 359 (Bluescope Steel) at [38], and relevantly stated:
As that passage acknowledges, the meaning of the word ‘ordinary’ when qualifying the word ‘hours’ (or ‘time’) will usually depend on the context in which it has been used. ‘Ordinary hours’ can be a reference to the hours of work of a particular employee, which are either contracted for, or prescribed by, the applicable award or industrial instrument. Thus, for full-time employees, an award may provide for the working of a 40-hour week in exchange for the weekly rate of pay. In that context, it would be appropriate to refer to the prescribed hours as the ‘ordinary hours’. Similarly, a part-time employee may be contacted to work 15 hours per week…
Reflecting on what Allsop CJ in Bluescope Steel referred to as the ‘long-recognised distinction between ordinary hours of work and overtime’, when the expression ‘ordinary hours’ or ‘ordinary time’ is used to refer to the hours of an employee, the reference will usually be an intended reference to the standard hours of work of the employee prescribed by the industrial instrument or the contract, as distinct from the extra hours that an employee may either be required to work or may volunteer to work as overtime. Target [11]  [12] (Bromberg J), [118], [129] (Jackson and Feutrill JJ agreeing).

81 Accordingly, whether an employee ‘ordinarily works’ or ‘would ordinarily have worked’ on a particular day cannot be determined by reference to the day of the week alone. The question is whether, having regard to the employee’s usual working arrangements, that day would normally or usually be a working day for that employee.
82 An inquiry of this kind is also consistent with the language used in s 31 and s 33 of the MCE Act. Section 31(2) refers to ‘the employee’ and ‘their ordinary hours’, while s 33(1) refers to ‘the employee’ taking paid annual or personal leave. These expressions appear to take into account the circumstances of the particular employee whose entitlement is being considered.
83 In the context of s 31 and s 33 of the MCE Act, the inquiry is therefore whether, for example, the employee’s pattern of work, roster, contractual obligations or industrial instrument, would normally have required the employee to work on the day had it not been a public holiday.
84 For Ms Versteeg that inquiry starts with considering the terms of the Agreement and then considering the Roster.
Salary, Hours of Duty and Rostering Under the Agreement
85 Clause 10 of the Agreement provides the rates of pay and cl 10.1(a) provides that annualised salary rates are payable in respect of ordinary hours of duty as provided in cl 11 of the Agreement.
86 Clause 11.2 of the Agreement provides that employees will work an average of 40 hours per week or 80 hours per fortnight. Shifts can be rostered on any day inclusive of Saturdays, Sundays and public holidays (now subject to s 30 of the MCE Act).
87 Clause 11.3 of the Agreement provides that the type of roster will be either a standard roster, extended settlement period roster or flexible roster.
88 Relevant to the Claim, Ms Versteeg was on a standard roster.
89 Clause 11.4(a)(i) of the Agreement provides that for a standard roster where 40 hours per week are rostered, the roster is made up of either five 8hour shifts, or four 10-hour shifts.
90 Clause 11.4(a)(ii) of the Agreement provides that for a standard roster where 80 hours per fortnight is worked, a combination of seven, eight, nine or 10-hour shifts can be rostered.
91 Employees can be rostered to work on more than one type of shift during any weekly period, subject to the provisions of cl 11.4(b) of the Agreement.
92 Clause 11.4(c) of the Agreement provides that, save for certain areas not relevant to the Claim, rosters are to be posted no later than 1.00 pm on the Tuesday preceding the fortnight to be worked showing the start times, shift lengths and weekly leave days for the ensuing fortnight.
93 Clause 11.7 of the Agreement contains general provisions applicable to the three roster types in cl 11.3. Relevant to the Claim are:
(d) where Practicable, weekly leave days off shall be rostered together.
(e) where only 10-hour shifts are rostered, a minimum of two weekly leave days will be rostered together.
94 Clause 11.11 of the Agreement provides for the rostering of four weekends off duty over each 12week period where practicable.
95 Clause 12 of the Agreement applies to part-time employees, although there was no suggestion Ms Versteeg worked part-time. Therefore, this and any other clause applicable to other categories of employee will not be discussed further.
96 Under the terms of the Agreement, as a full-time employee Ms Versteeg was required to work either 40 ordinary hours of duty per week or 80 ordinary hours of duty per fortnight and she would be paid the relevant salary referred to in cl 10 of the Agreement. While it might be dependent on the type of roster, for Ms Versteeg, she was required to work 80 ordinary hours per fortnight in eight 10hour shifts. She could, but was not required to, be rostered on any day of the week, which may have included Saturdays, Sundays and public holidays.
97 The Agreement outlines ‘rules’ around rostering to presumably ensure that employees have sufficient rest days in a row and to know their roster in advance to presumably plan their lives outside of work, and to ensure that the Commissioner of Police can adequately staff the operations of the WA Police.
98 The other rosters referred and attached to Ms Versteeg’s witness statement are consistent with this rostering arrangement. Exhibit 2, Attachments 1  10.
That is, she was rostered to work on any day of the week, which may have included Saturdays, Sundays and public holidays depending on the fortnightly roster allocation.
99 In terms of working on public holidays prior to 3 March 2025, as set out in [17] above, Ms Versteeg, again consistent with cl 11.2 of the Agreement, was rostered to work or not rostered to work on public holidays, depending on the fortnightly roster allocation.
100 In Western Australian Police Union of Workers v Commissioner of Police [2021] WAIRC 47; (2021) 101 WAIG 293 at [258] Senior Commissioner Kenner (as he was then) 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.
101 Further, at [315], the Senior Commissioner explained that in relation to annual leave:
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].
102 The Agreement retains an entitlement of employees to six weeks of annual leave (or 240 hours) on full pay for each year of service. Clause 30.1(a) of the Agreement.

Determination on the Preferred Construction
103 I do not accept Ms Versteeg’s suggested construction the effect of which is that where an employer has a rostering discretion, the employer is to defer to a roster that best preserves an employee’s entitlement under s 33 of the MCE Act or create an administrative or hypothetical roster that would produce a more favourable outcome for the employee.
104 That construction is difficult to reconcile with the text of s 33 of the MCE Act, which imposes no such obligation and contains no indication that the entitlement is to be determined by reference to a hypothetical roster, or by reference to a roster that is most advantageous to an employee.
105 As it relates to Ms Versteeg and the Claim, the inquiry under s 33 of the MCE Act is what should occur if a public holiday falls on a day the employee would ordinarily have worked under the actual rostering arrangement.
106 This requires the Court to consider the actual rostering arrangement, not alternative rostering possibilities.
107 Section 33 of the MCE Act does not regulate employers’ rostering discretion. Rather, it identifies when an annual or personal leave entitlement is to be preserved. There is nothing in the text of the section to suggest that the question is to be answered by reference to a different or hypothetical roster that might have been more beneficial to the employee.
108 The employer is not required to maximise the minimum condition of employment relating to public holidays, where the entitlement arises only if a public holiday coincided with work that would have in fact been performed had the employee not been on paid annual or personal leave.
109 The practical difficulties with Ms Versteeg’s suggested construction is that it would produce different outcomes depending on the degree of rostering flexibility available to the employer; it would require courts to speculate about rosters that were never worked; and introduce requirements that are not in the MCE Act.
110 In addition, this construction arguably treats paid annual leave and paid personal leave differently, notwithstanding that s 33(2) of the MCE Act treats them the same. If annual leave was treated as merely an administrative allocation capable of being reattributed, it is difficult to see how the same reasoning could apply to paid personal leave, which may be taken unexpectedly and at short notice.
111 The preferred construction is that s 33 of the MCE Act applies by reference to the employee’s actual working arrangement on the particular public holiday. Section 33 of the MCE Act preserves paid annual or personal leave only if the particular public holiday falls on a day that the employee would have otherwise worked and is a day for which annual leave or personal leave has been taken.
112 This construction accords with the purpose of s 33 of the MCE Act. That is, preserving the employee’s leave balance where a public holiday falls on a day for which leave has been taken. The section is therefore concerned with identifying the working days covered by annual or personal leave and ensuring that a public holiday occurring on one of these working days does not reduce the employee’s paid annual or personal leave entitlement.
113 It is not concerned with turning non-working days into public holidays, converting rostered days off into leave days or creating an entitlement by reference to hypothetical work arrangements.
114 This construction is also consistent with the example in the Explanatory Memorandum for the Industrial Relations Legislation Amendment Bill 2024 (WA) referred to by Ms Versteeg in respect of a part-time employee whose rostered hours do not include Mondays. Under s 31(1) of the MCE Act, this employee would not be entitled to be paid for a public holiday which fell on a Monday.
115 It is also consistent with Ms Versteeg’s final rostering arrangement prior to her resigning from the WA Police, where she was placed on a Monday to Friday roster (noting this type of roster is still a standard roster under cl 11.4(a) of the Agreement). The reason for her being placed on this type of roster was to facilitate her request to clear her leave prior to resignation, and a leave clearance plan was commenced which is an operational matter for the Commissioner of Police.
Determination of Claim
116 The Roster allocated Ms Versteeg’s days of work as 6, 7, 8, 9, 11, 12, 13 and 14 March 2025 making up 80 hours of duty for the fortnight. The remaining days were allocated as days off and must have been days off otherwise she would have been rostered to work more than 80 hours in the fortnight.
117 When Ms Versteeg had two weeks’ annual leave from 3 to 16 March 2025, she was relieved from working the eight shifts in the fortnight that she was otherwise rostered to be at work on duty. Instead, she was paid to be absent from work on the days she was otherwise rostered to be at work on duty with the hours making up those days being deducted from her accumulated annual leave balance.
118 Therefore, under the ordinary working arrangements in the Roster and consistent with the terms of the Agreement, Ms Versteeg was not rostered to work on 3 March 2025, and this was not a day she would ‘ordinarily have worked’ but was a day off on weekly leave under the Roster.
119 Accordingly, the Commissioner of Police has not contravened s 33 of the MCE Act by taking Ms Versteeg to be on a weekly leave day on 3 March 2025 which was not a day that she would ordinarily have worked under the Roster. Nor did the Commissioner of Police contravene s 33 of the MCE Act by deducting a period of annual leave on a day Ms Versteeg was otherwise rostered to work but where she took paid annual leave.
120 Even if the Court could order the Commissioner of Police ‘to credit’ Ms Versteeg’s annual leave balance in proceedings under the MCE Act, there is no evidence Ms Versteeg’s annual leave deduction was not in accordance with the annual leave she took.
121 Further, under the terms of the Agreement and the Roster where Ms Versteeg was not rostered to work on 3 March 2025, she was not required to attend work so there was no entitlement for her to be absent from work. Therefore, s 31 of the MCE Act does not apply to her for the public holiday on 3 March 2025, also noting that her annualised salary compensates her for the possibility and actuality of working on a public holiday, even when she does not.
122 Therefore, to the extent Ms Versteeg sought an order for the contravention of s 31(2) of the MCE Act, the Commissioner of Police has not contravened s 31(2) of the MCE Act by failing to pay Ms Versteeg as if she was required to work her ordinary hours on 3 March 2025.
Outcome
123 Ms Versteeg has not proven to the required standard of proof that the Commissioner of Police contravened s 33 or s 31 of the MCE Act.
124 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)


SCHEDULE II: Construction of Industrial Instruments
[1] The relevant principles to be applied when interpreting an industrial instrument are set out by the Full Bench of the Western Australian Industrial Relations Commission in Fedec v The Minister for Corrective Services [2017] WAIRC 00828; 97 WAIG 1595 [21] - [23].
[2] In summary (omitting citations), the Full Bench stated:
The general principles that apply to the construction of contracts and other instruments also apply to the construction of an industrial agreement;
(1) The primary duty of the court in construing an instrument is to endeavour to discover the intention of the parties as embodied in the words they have used in the instrument;
(2) It is the objectively ascertained intention of the parties, as it is expressed in the instrument, that matters; not the parties' subjective intentions. The meaning of the terms of an instrument is to be determined by what a reasonable person would have understood the terms to mean;
(3) The objectively ascertained purpose and objective of the transaction that is the subject of a commercial instrument may be taken into account in construing that instrument. This may invite attention to the genesis of the transaction, its background and context;
(4) The apparent purpose or object of the relevant transaction can be inferred from the express and implied terms of the instrument, and from any admissible evidence of surrounding circumstances;
(5) An instrument should be construed so as to avoid it making commercial nonsense or giving rise to commercial inconvenience. However, it must be borne in mind that business common sense may be a topic on which minds may differ’;
(6) An instrument should be construed as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed so as to have some operation; and
(7) Industrial agreements are usually not drafted with careful attention to form by persons who are experienced in drafting documents that have legal effect.
[3] The following is also relevant:
· Ascertaining the intention of the parties begins with a consideration of the ordinary meaning of the words of the instrument. Ascertaining the ordinary meaning of the words requires attention to the context and purpose of the clause being construed. City of Wanneroo v Australian Municipal, Administrative, Clerical And Services Union [2006] FCA 813; (2006) 153 IR 426 at [53] - [57] (French J).
· Context may appear from the text of the instrument taken as a whole, its arrangement and the place of the provision under construction. The context includes the history of the instrument and the legal background against which the instrument was made and in which it was to operate. City of Wanneroo [53]  [57] (French J); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638 [28]  [30] (Katzmann J).


SCHEDULE III: Exhibit 1, Agreed Document 1