2026 WAIRC 00780
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2026 WAIRC 00780



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
THURSDAY, 2 JULY 2026



DELIVERED
:
FRIDAY, 7 AUGUST 2026



FILE NO.
:
M 23 OF 2026



BETWEEN
:
ALLEN KELLY


CLAIMANT





AND





DEPARTMENT OF HEALTH WA (ABN 28 684 750 332)



RESPONDENT

CatchWords : INDUSTRIAL LAW – Minimum Conditions of Employment Act 1993 (WA) – Proper construction and application of section 24(1) of the Minimum Conditions of Employment Act 1993 (WA) – Taking of accrued annual leave that became due more than 12 months earlier – Agreement between employer and employee – Circumstances of rejection and refusal
Legislation : Minimum Conditions of Employment Act 1993 (WA)
Industrial Relations Legislation Amendment Act 2024 (WA)
Industrial Relations Act 1979 (WA)
Public Sector Management Act 1994 (WA)
Instrument : Public Service Award 1992
Public Sector CSA Agreement 2024
Cases referred
to in reasons: : City of Fremantle v Imago Holdings Pty Ltd [2020] WASCA 61; (2020) 56 WAR 75
WA Prison Officers’ Union of Workers v Minister for Corrective Services [2025] WASCA 177; (2025) 105 WAIG 2703
Miller v Minister of Pensions [1947] 2 All ER 372
Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27
Result : The claim is dismissed
Representation:
Claimant : Self-represented
Respondent : Ms H. Ticehurst (of counsel)



REASONS FOR DECISION
Background
1 By his originating claim lodged on 29 January 2026, Allen Kelly (Mr Kelly) alleges that his application for annual leave was refused in 2020 and the refusal of his application for annual leave contravened s 24(1) of the Minimum Conditions of Employment Act 1993 (WA) (MCE Act). Mr Kelly seeks the imposition of a pecuniary penalty for this alleged contravention (the Claim).
2 Mr Kelly was employed by the Department of Health (the Department or the respondent).
3 He applied for paid annual leave to be taken on 14 and 28 February 2020, 13 and 27 March 2020, 24 April 2020, 22 May 2020, as well as 5 and 19 June 2020 (the Annual Leave Dates).
4 Mr Kelly asserts that the applications for the Annual Leave Dates were rejected in an email by the Office of the Assistant Director General on 3 February 2020, and that this rejection amounts to a refusal of the Annual Leave Dates.
5 The Department’s Human Resources Management System (Ascender) records that Mr Kelly took annual leave on 14 and 28 February 2020, 13 and 27 March 2020, 22 May 2020, 5 and 19 June 2020. The respondent says, in respect of 24 April 2020, Ascender records that Mr Kelly reversed this annual leave application himself and was instead taken as personal leave.
The Claim
6 Mr Kelly’s case is that when he applied in December 2019 to take as annual leave the Annual Leave Dates, he had accrued sufficient annual leave to cover the period sought. He contends that the rejection of his leave applications on 3 February 2020 constituted a refusal of annual leave for the purposes of s 24(1) of the MCE Act, because, absent any further application by him, the annual leave would not have been approved
7 Mr Kelly further contends that the rejection amounted to a refusal notwithstanding that he was instructed to lodge a further application for the Annual Leave Dates. Although he subsequently complied with that instruction and the leave was ultimately approved, he alleges that the initial rejection on 3 February 2020 constituted the contravening conduct.
8 One issue that arises is the version of the MCE Act that applies where the alleged refusal by the Department occurred in 2020. In my view, the applicable version is that in force between 29 November 2016 and 21 December 2021.
9 In that version of the MCE Act, the relevant provision is s 25. Section 24 was inserted as a result of amendments to Part 4, Division 3 of the MCE Act pursuant to the Industrial Relations Legislation Amendment Act 2024 (WA).
However, s 25(1) and s 25(2) of that version are, in substance, identical to s 24(1) and s 24(2) of the current MCE Act. The Explanatory Memorandum to the Industrial Relations Legislation Amendment Bill 2024, at [660], provides that s 24(1) and s 24(2) replicates the existing s 25 of the MCE Act with respect to the taking of annual leave.
Further, the inclusion of s 24(3) in the current MCE Act has no relevance to the issues raised by the Claim.
10 Section 24 of the MCE Act is within Part 4, Division 3 of the MCE Act relating to minimum conditions for paid annual leave. A minimum condition of employment may be enforced under s 83 of the Industrial Relations Act 1979 (WA) (IR Act) as an entitlement provision. Section 7 of the IR Act – definition of ‘entitlement provision’ paragraph (c).

11 Similarly, s 25 was within Part 4, Division 3 of the MCE Act (as it was during the alleged contravention) relating to minimum conditions for annual leave. Where I refer to s 25 of the MCE Act in the following reasons, I refer to the Act in force between 29 November 2016 and 21 December 2021. Any other reference to the MCE Act refers to the version currently in force.
12 While not detailed in the Claim, it is assumed Mr Kelly is applying to the Industrial Magistrates Court (IMC) for the enforcement of an entitlement provision pursuant to s 83(1)(e)(ii) of the IR Act.
13 Neither party addressed an issue of the operation and possible effect (if any) of amendments to s 83 of the IR Act to the Claim following the enactment of Industrial Relations Legislation Amendment Act 2021.
14 For reasons to follow, in my view, this does not affect the disposition and outcome on the facts.
15 Schedule I is the jurisdiction, practice, and procedure of the IMC under the IR Act.
The Response
16 The Department denies that it contravened s 24(1) (or s 25(1)) of the MCE Act.
17 The Department says Mr Kelly’s employment is covered by the Public Service Award 1992 (Award) and his entitlement to annual leave arose under that Award and not from the MCE Act.
18 Further, the Department says that Mr Kelly applied for, was granted, and took annual leave on the Annual Leave Dates, save for 24 April 2020 when he later reversed the annual leave booking and replaced it with personal leave for that day.
19 The Department did not refuse Mr Kelly taking paid annual leave at a time suitable to him.
Evidence
20 Most of the facts are not disputed.
21 Mr Kelly relied upon his witness statement signed on 11 June 2026 with annexures. Exhibit 1 – witness statement of Allen Kelly signed on 11 June 2026 with attachments.

22 The Department relied upon a witness statement of Ashelin Elise Copeland, Principal Employee Relations Consultant at the Department (Ms Copeland), signed on 11 June 2026 with annexures. Exhibit 2 – witness statement of Ashelin Elise Copeland signed on 11 June 2026 with annexures AC-1 to AC-4.

23 While Mr Kelly and Ms Copeland were cross-examined, they both substantially agreed with propositions put to each of them and their evidence was mainly directed to clarifying issues.
24 In or around October 2019, Mr Kelly applied for annual leave for specified dates. At the time of the application, he had accrued annual leave entitlements. Mr Kelly contends that those entitlements included approximately 67 hours of historical annual leave, being annual leave that had accrued more than 12 months earlier. Exhibit 1 [8].

25 Following this application in or around November 2019, there were a series of discussions between Mr Kelly and John Gourlay, his line manager (Mr Gourlay), about Mr Kelly’s fatigue issues, poor work performance and the use of work computers during work time for personal reasons. Exhibit 1 [7], see attachments labelled ‘Document 12’ (emails dated 15 November 2019 to 21 January 2020), ‘Document 12 – Attachment 1’ (emails dated 15 November 2019 to 22 November 2019), and ‘Document 12 – Attachment 1 - 01’ (document titled ‘Response to Confirmation of Discussion’). Mr Kelly denied playing computer games but admitted using work time and a work computer to carry out record keeping and edits for his Adventurers League characters.

26 On 22 November 2019, Mr Gourlay sent Mr Kelly an email referring to their discussions and emails, and stated:
I take on board your pending leave liability and, as discussed, I would like you to book a minimum of one week (preferably 2 weeks or greater) in the first quarter of 2020. I would expect you to book this prior to the Xmas break and that you will take this period of leave when the time comes. I note that you have agreed to this plan.
…
Obviously, it would not be ideal to direct you to take leave at dates not convenient to yourself during the specified period, so I will leave it to you to select dates which will work for you and will follow up in the second week of December if you have not submitted a form prior to then.
With respect to your requests for specific days off, I will assess these against the business need [sic] as they arise. However, I reiterate that your preferred roster pattern of taking every second Friday off (in full or part days) cannot be facilitated ongoing within the needs of the business. Exhibit 1, document labelled ‘Document 12  Attachment 1’.

27 On or around 11 December 2019, the applications for annual leave made in October 2019 were rejected, and Mr Kelly immediately applied for the Annual Leave Dates, some of which were the same as the dates previously applied for in October 2019. He asserts that he had sufficient historical annual leave to cover the Annual Leave Dates requested. Exhibit 1 [13]  [16], [20], and documents not numbered but attached to the witness statement.

28 Mr Kelly also applied for other annual leave days as follows, and these were approved on:
(a) 10 December 2019, for part day annual leave to be taken on 12 December 2019;
(b) 11 December 2019, for whole day annual leave to be taken on 17 January 2020;
(c) 26 December 2019, for part day annual leave to be taken on 31 December 2019; and
(d) 30 January 2020, for whole day annual leave to be taken on 31 January 2020. Exhibit 1 [9], [24] and documents not numbered but attached to the witness statement.

29 On 21 January 2020, Mr Gourlay sent an email to staff at the Department’s Corporate Services about Mr Kelly’s continuing poor work performance and failure to submit a leave form for extended leave as previously agreed between Mr Kelly and Mr Gourlay. Mr Gourlay referred to the applications for the Annual Leave Dates submitted in December 2019, and included a screen shot of the dates applied for. Exhibit 1, document labelled ‘Document 12’.

30 I note that on 6 January 2020, Mr Kelly applied for a whole day’s annual leave to be taken on 31 January 2020, which was approved on 30 January 2020. The 31 January 2020 date was one of the dates included in the screen shot of dates in the email dated 21 January 2020.
31 On 3 February 2020, Mr Kelly received an automated response via email for each of the Annual Leave Dates informing him as follows:
104: MyHR Notification:
Your Whole Day Leave Request (id = …) has been rejected. Exhibit 1 [6], see emails to Mr Kelly from WA Health sent 3 February 2020 at 9.46 am.

32 Each automated response also provided an action date of 16 February 2020. The emails were also flagged for follow up.
33 One minute after the automated response emails were sent, a further email was sent by a Manager of the Office of the Assistant Director General to Mr Gourlay stating:
A number of requests for leave from Allen Kelly have escalated to Nicole for approval. We have rejected them, Allen will need to resubmit and you can approve through MyHR. Exhibit 2, AC-4.

34 One minute after that email was sent, Mr Gourlay sent an email in reply stating:
Thanks Sarah, I will do so. Exhibit 2 at AC-4.

35 On 3 February 2020, Mr Kelly immediately resubmitted the application for the Annual Leave Dates and the applications for all dates were approved. ts 15.

36 Mr Kelly took annual leave on the Annual Leave Dates as approved; Exhibit 2, AC2; ts 15  16.
save that for 24 April 2020 where Mr Kelly applied to reverse the annual leave on 24 April 2020.
37 Mr Kelly agreed that an agreement to take the Annual Leave Dates was reached ‘finally’ or ‘eventually’ . ts 7, 16.

38 The applications for Annual Leave Dates were declined by the Assistant Director General on 3 February 2020 so that they could be resubmitted to Mr Kelly’s manager, Mr Gourlay, for approval. Exhibit 2 [8].

39 The Department’s system for submitting leave requests is merely a processing mechanism to account for leave, which then triggers an email prompt to an approver to either approve or refuse the request for leave via the MyHR leave management system. ts 20.

40 If leave is refused or declined, it is then a matter for the employee to discuss with the employer the reason for the refusal and to negotiate the leave. ts 21.
Each application for leave is assessed and considered. ts 22.

Contentions
Mr Kelly’s Contentions
41 Mr Kelly submits that at the time the applications for the Annual Leave Dates were rejected he had historical annual leave capable of being taken when he applied for the Annual Leave Dates.
42 The rejection of the Annual Leave Dates on 3 February 2020 was a refusal of this historical annual leave. Had he not resubmitted the applications for the Annual Leave Dates, he would not have taken the annual leave. This, he says, is a contravention of s 24(1) of the MCE Act.
43 Mr Kelly disputes that there was no agreement at the time the applications for the Annual Leave Dates were rejected.
44 Mr Kelly’s other issue was that the Department did not deal with his leave requests in a timely manner as required by the Department’s internal policies and that the Department’s intention was to let his applications for annual leave lapse and not deal with them at all. Further, Mr Kelly perceives that the Department unfairly handled his annual leave in 2020. ts 30.

The Respondent’s Contentions
45 The Department submits that on the facts, the Annual Leave Dates were not refused. Properly understood, the email dated 3 February 2020 rejecting the applications for the Annual Leave Dates was due to an administrative issue so that they could be resubmitted to the appropriate manager for approval. This did not constitute a refusal of the Annual Leave Dates.
46 The facts demonstrate the Annual Leave Dates were approved and taken.
47 Further, any preliminary discussion about Mr Kelly’s leave patterns did not amount to a refusal and had no operative effect of the later approval of the Annual Leave Dates.
48 The Department submits that the statutory precondition for the operation of s 24(1) of the MCE Act is not engaged. In particular, it submits that the provision only applies where there is no agreement between the employer and employee as to when historical annual leave is to be taken. In the present case, there was ultimately agreement as to the Annual Leave Dates.
49 The Department also relies upon the terms of the Award where the Award applies to public service officers appointed under the Public Sector Management Act 1984 (WA) who are members of, or eligible to be members of, the Civil Service Association of Western Australia (Inc). Clause 4 of the Award.

50 Clause 23 of the Award, when read with the Public Sector CSA Agreement 2024 (Agreement), provides for an employee’s entitlement to annual leave, including the accrual, management and taking of annual leave.
51 As I understand the Department’s submissions, the Department contends that the combined effect of the terms of the Award and the Agreement governs the management of annual leave where annual leave may be accrued and carried forward for up to two years from the date of entitlement. Clause 23(2)(b) of the Award.

52 The Department further submits that these Award and Agreement provisions confer an entitlement that is more favourable than the minimum entitlement provided by s 24(1) of the MCE Act, thereby engaging s 5(2) of the MCE Act. On that basis, it contends that s 24(1) has no application to the Claim because the relevant minimum condition of employment is displaced by the more favourable Award entitlement.
53 If this is accepted, the Department submits that cl 23(9) of the Award, subject to cl 23(2)(b), permits the Department to direct an employee to take accrued annual leave and may determine the date on which such leave is to commence. Further, there is a process of administering annual leave and an associated approval process. According to the Department, cl 23 of the Award does not confer upon an employee a unilateral entitlement to take annual leave at a time of their choosing.
54 The Department further submits that, even if s 24(1) of the MCE Act is capable of conferring an additional or more beneficial entitlement, the section only applies where the employer and employee have not agreed upon when historical annual leave is to be taken. The Department contends that the facts do not support such a circumstance and therefore do not support the Claim.
Statutory Framework
55 The principal issue for determination is the proper construction and application of s 24(1) (and previously, s 25(1)) of the MCE Act.
56 Based on the Claim and Mr Kelly’s submissions, I understand part of Mr Kelly’s case to be that any rejection of an application for annual leave to which s 24(1) of the MCE Act applies constitutes a refusal to take historical annual leave at a time suitable to the employee.
57 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; (2020) 56 WAR 75, 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)
58 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 MCE Act with less favourable conditions to have no effect. See generally comments made by Smith AUJ in in WA Prison Officers’ Union of Workers v Minister for Corrective Services [2025] WASCA 177; (2025) 105 WAIG 2703 [62].

59 Section 24(1) and s 24(2) of the MCE Act states:
(1) If an employer and employee have not agreed when the employee is to take paid annual leave, the employer must not refuse the employee taking, at a time suitable to the employee, a period of paid annual leave the employee became entitled to more than 12 months before that time.
(2) The employee is to give the employer at least 2 weeks’ notice of the period during which the employee intends to take paid annual leave.
60 Section 25(1) and s 25(2) of the MCE Act, at the time of the alleged contravention, was also couched in similar terms:
(1) Where an employer and employee have not agreed when the employee is to take his or her annual leave, subject to (2), the employer is not to refuse the employee taking, at any time suitable to the employee, any period of annual leave the entitlement to which accrued more than 12 months before that time.
(2) The employee is to give the employer at least 2 weeks’ notice of the period during which the employee intends to take his or her leave.
61 The purpose and operation of s 24(1) (or s 25(1)) of the MCE Act is to be understood in the context of the statutory entitlement to paid annual leave more generally. Section 23 of the MCE Act in both its current and former forms, provides that an employee, other than a casual employee, has a minimum entitlement to paid annual leave of up to 152 hours per year to accrue cumulatively pro rata on a weekly basis.
62 That is, each year an employee is entitled to a minimum period of paid absence from work for rest and relaxation.
63 Section 24(1) of the MCE Act applies where an employee has accrued annual leave that became due more than 12 months earlier and the employer and employee have not agreed when that leave is to be taken.
64 In those circumstances, s 24(1) of the MCE Act confers upon the employee an entitlement to take the accrued annual leave at a time suitable to the employee, provided that:
(a) the period of annual leave to be taken became due more than 12 months before that time;
(b) the employee and employer have not agreed when the leave is to be taken; and
(c) the employee then gives the employer at least two weeks’ notice of the period the employee intends to take off from work.
65 In my view, the evident purpose of s 24(1) of the MCE Act is to facilitate the taking of accrued annual leave that has remained untaken for an extended period. The provision operates where annual leave has accrued for more than 12 months and no agreement has been reached as to when it is to be taken.
66 The requirement that the employer and employee first have an opportunity to reach agreement as to the timing of the leave serves an important function. It enables the parties to attempt to identify a period that is mutually suitable before the employee relies upon the statutory entitlement conferred by s 24(1) of the MCE Act.
67 Equally, the requirement in s 24(2) of the MCE Act that the employee give at least two weeks’ notice serves a practical purpose. It affords the employer an opportunity to make any operational or administrative arrangements necessary to accommodate the employee’s absence.
68 Read as a whole, s 24(1) and s 24(2) of the MCE Act strike a balance between an employee’s entitlement to take accrued annual leave that has remained untaken for more than 12 months and the employer’s interest in having reasonable notice of the employee’s absence.
Application to the Claim
69 In my view, the Claim is misconceived and is not supported by the facts when considered in light of the purpose and operation of s 24(1) of the MCE Act (formerly, s 25(1)).
70 First, in or around October 2019, Mr Kelly applied for annual leave on 14 and 28 February 2020, 13 and 27 March 2020, 24 April 2020, 8 May 2020, and 22 May 2020.
71 Following these applications, there were discussions and the email exchanges between Mr Kelly and Mr Gourlay in November 2019 concerning the taking of annual leave, but this occurred in the broader context of concerns regarding Mr Kelly’s fatigue and work performance where, according to Mr Gourlay, it was agreed that Mr Kelly would take longer periods of leave.
72 The applications for annual leave submitted in October 2019 were rejected on or around 11 December 2019.
73 Thereafter, Mr Kelly immediately submitted further annual leave applications for what became the Annual Leave Dates. Those applications included dates in addition to those contained in the October 2019 applications and substituted public service holiday leave for 8 May 2020. Mr Kelly also submitted other applications for annual leave on 10 and 11 December 2019 and in January 2020 which were approved.
74 The applications for the Annual Leave Dates were neither approved nor refused at the time. Rather, they formed part of the matters referred to in Mr Gourlay’s email of 21 January 2020 concerning Mr Kelly’s ongoing work performance issues and the absence of a leave form for an extended period of leave that had previously been discussed with him.
75 Even accepting that Mr Kelly had accrued annual leave to which s 24(1) of the MCE Act applied, the evidence does not satisfy me that the parties had reached a point regarding when the annual leave forming the Annual Leave Dates was or was not to be taken. To the contrary, the evidence indicates an ongoing process concerning the timing and administration of annual leave in the context of work performance issues.
76 Mr Kelly’s submissions appear to suggest that s 24(1) of the MCE Act confers a unilateral entitlement upon an employee to nominate dates for the taking of historical annual leave which an employer must then accept. I do not entirely accept that construction. Although the provision favours an employee in circumstances where historical annual leave remains untaken, it nevertheless operates within a framework that contemplates engagement between employer and employee concerning the taking of leave.
77 Secondly, the Annual Leave Dates were not refused.
78 Even accepting that Mr Kelly’s applications for the Annual Leave Dates were rejected on 3 February 2020, it does not follow that the annual leave sought was refused. A rejection of an annual leave application may reflect an administrative deficiency, a requirement for the application to be resubmitted, or an ongoing process of consultation regarding the timing of the annual leave. In each of those circumstances there remains scope for further discussion and agreement between the employee and employer. Accordingly, a rejection of an application for annual leave may not necessarily be synonymous with a refusal of annual leave.
79 While the leave applications for the Annual Leave Dates were rejected on 3 February 2020, that rejection was not, in substance, a refusal to permit Mr Kelly to take accrued annual leave. Rather, it was a rejection of the manner in which the applications had been submitted and an indication that further administrative steps were required before approval could be given.
80 Upon resubmission, the applications for the Annual Leave Dates were approved. Mr Kelly subsequently took the approved annual leave, with the exception of 24 April 2020, which he later elected to take as personal leave. As a matter of fact, the Annual Leave Dates were ultimately approved and taken.
81 In all of those circumstances, I do not accept and do not find that for the Annual Leave Dates the Department refused Mr Kelly taking annual leave at times suitable to him within the meaning of s 24(1) of the MCE Act.
82 Thirdly, and while not determinative, even if the rejection of the applications on 3 February 2020 could be characterised as a refusal for the purposes of s 24(1) of the MCE Act, the evidence does not establish that Mr Kelly gave the respondent at least two weeks’ notice of the period during which he intended to take the annual leave in accordance with s 24(2) of the MCE Act and was then in some way prevented from taking or refused the period of paid annual leave.
83 Properly understood, Mr Kelly’s complaint is directed less to an alleged refusal of annual leave and more to the process by which the respondent administered and approved his annual leave applications. That complaint does not establish a contravention of s 24(1) of the MCE Act.
Other Observations
84 Having concluded that the Department did not refuse Mr Kelly taking the Annual Leave Dates for the purposes of s 24(1) of the MCE Act (or s 25(1)), it is unnecessary to determine the Department’s alternative submission that Mr Kelly’s annual leave entitlement was governed by the Award, with the consequence that s 5(2) of the MCE Act operated to exclude the minimum condition of employment contained in s 24(1).
85 Notwithstanding this, I note that cl 23(2)(b) of the Award is directed to circumstances in which an employee, with the employer’s consent, elects to carry forward annual leave for a period of up to two years after the entitlement becomes due. In contrast, s 24(1) of the MCE Act is directed to the taking of annual leave that has remained untaken for more than 12 months where the employer and employee have not agreed when that leave is to be taken.
86 The entitlement under those provisions is not identical. It is at least arguable that s 24(1) of the MCE Act and cl 23 of the Award are capable of operating concurrently and, to that extent, may not necessarily be inconsistent with one another such that cl 23(2)(b) of the Award is considered more favourable.
87 However, as the issue was not fully argued and is unnecessary to the disposition of the Claim, it is not appropriate to express any concluded view on the interaction between cl 23(2)(b) of the Award and s 24(1) of the MCE Act. I merely observe that, on other arguments advanced in this proceeding, consideration of s 24(1) of the MCE Act was open.
Outcome
88 Mr Kelly has not proven to the required standard of proof that the Department has contravened s 24(1) (or previously, s 25(1)) of the MCE Act.
89 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)