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Off-work Officer Not Entitled to Travelling Time

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

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

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

The decision can be read here.


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Long Service Leave Contravention Upheld: Employment found to be Continuous

Under consideration by Industrial Magistrate Tsang was an application, seeking a review of a compliance notice issued by the respondent, Ms Catalucci, an Industrial Inspector, under the Industrial Relations Act 1979 (WA). The notice alleged that the applicant contravened the Long Service Leave Act 1958 (WA) by not paying pro rata long service leave to Mr McCormick upon his employment termination in October 2020. The compliance notice required the applicant to remedy the contravention by paying Mr McCormick $9,345.21.

The applicant did not dispute the employment period or the calculation but argued that Mr McCormick was not entitled to long service leave because his two employment periods were not continuous. The central legal question was whether the termination of Mr McCormick’s apprenticeship contract, leading to a break in employment, affected his entitlement to long service leave.

Tsang IM analysed the statutory construction of “continuous employment” under the Long Service Leave Act. Tsang IM rejected the applicant’s arguments, finding that the completion of the apprenticeship did not terminate Mr McCormick’s employment relationship, and his subsequent role as an Electrician constituted continuous employment. Tsang IM emphasised the ordinary meaning of the statute, its legislative purpose, and the absence of specific provisions deeming the termination of an apprenticeship as a break in continuous employment.

Ultimately, Tsang IM concluded that Mr McCormick’s employment was continuous, lasting from 23 October 2012 to 29 October 2020. Consequently, the applicant was obligated to pay pro rata long service leave, and since the company failed to prove otherwise, the compliance notice was confirmed, and the application was dismissed.

The decision can be read here.

Magistrate Orders Payment for Prison Officer’s Denied Sick Leave

Mr Paterson, a prison officer with over 11 years of service, faced a dispute with the respondent regarding his application for three days of personal (sick) leave. The dispute arose when the respondent initially rejected both personal (sick) leave and personal (carer's) leave claims, although the latter was later accepted upon review. The applicant, representing Mr Paterson,  alleged a breach of cl 71.1 of the Department of Justice Prison Officers Industrial Agreement 2020, asserting that the respondent, through its superintendent, breached the agreement by refusing to accept Mr Paterson’s evidence, which met the minimum requirements.

The applicant contended that the respondent’s refusal to grant personal (sick) leave breached either the Department of Justice Prison Officers Industrial Agreement 2020 or the Minimum Conditions of Employment Act 1993 (WA). The respondent denied any contravention, arguing that the MCE Act did not apply to prison officers’ personal leave and that the superintendent’s discretion was exercised correctly.

Industrial Magistrate Kucera concluded that Mr Paterson's request for personal (sick) leave was reasonable and legitimate, and the department's refusal constituted a breach of cl 71.1 of the Agreement. Industrial Magistrate Kucera found that the respondent breached cl 71.1 of the Agreement when it refused to accept Mr Paterson’s request to take personal (sick) leave for three shifts. Industrial Magistrate Kucera made an order under s 83(1) of the IR Act requiring the respondent pay Mr Paterson three days of personal leave for the three dates specified dates.

The decision can be read here.