2023 WAIRC 00384
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT


CITATION : 2023 WAIRC 00384

CORAM : INDUSTRIAL MAGISTRATE T. KUCERA

HEARD : THURSDAY, 23 MARCH 2023

DELIVERED : 17 JULY 2023

FILE NO. : M 22 OF 2022

BETWEEN : WESTERN AUSTRALIAN PRISON OFFICERS' UNION OF WORKERS
CLAIMANT

AND

MINISTER FOR CORRECTIVE SERVICES
RESPONDENT

CatchWords : INDUSTRIAL LAW – Claim for personal (sick) leave – Enforcement of State industrial instrument – Alleged breach of instrument – Interpretation of industrial agreement – Application of Minimum Conditions of Employment Act 1993 – Meaning of reasonable evidence – Breach found – Claim proven
Legislation : Minimum Conditions of Employment Act 1993 (WA)
Industrial Relations Act 1979 (WA)
Instrument : Department of Justice Prison Officers Industrial Agreement 2020
Case(s) referred
to in reasons: : (Commission’s own motion) v Dardanup Butchering Co and Others (2004) 84 WAIG 2739
Sanja Spasojevic -v- Speaker of the Legislative Assembly [2023] WAIRC 00001
Terri Vincent v Department of Finance (2016) 96 WAIG 132
Target Australia Pt Ltd v Shop Distributive and Allied Employees Association [2023] FCAFC 66
WorkPac Pty Ltd v Skene (2018) 264 FCR 536
Director General, Department of Education v United Voice WA [2013] WASCA 287; (2014) 94 WAIG 1
The Australian Rail Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia (2017) 97 WAIG 1689
Result : Claim proven
REPRESENTATION:

CLAIMANT : MR D. STOJANOSKI (OF COUNSEL) AND WITH HIM MR A. CEKLIC (OF COUNSEL) AS INSTRUCTED BY SLATER & GORDON.
RESPONDENT : MR R. ANDRETICH (OF COUNSEL) AS INSTRUCTED BY THE STATE SOLICITOR’S OFFICE

REASONS FOR DECISION
1 Neal Paterson is a prison officer with over 11 years’ service with the Minister for Corrective Services (department). He is a member of the Western Australian Prison Officer’s Union of Workers (union), the claimant in this case.
2 On three consecutive dates, 1 – 3 October 2021, which coincided with the term three school holidays, Mr Paterson was off work sick. Mr Paterson was not required to attend for work following these dates because had two rostered days off.
3 On the next three consecutive dates he was rostered to work, 6 – 8 October 2021, Mr Paterson took a further three days off to care for his sick daughter. These days also coincided with the school holidays. Following these dates, Mr Paterson had two more rostered days off.
4 Upon his return to work on 11 October 2021, Mr Paterson submitted two claims for personal leave. The first was for three days personal (sick) leave. The second was a claim for personal (carer’s) leave.
5 Mr Paterson was unable to provide a medical certificate in support of his application for personal (sick) leave. Both of his personal leave applications were however supported by statutory declarations that his wife, Nicole Morris (Ms Morris), witnessed. Ms Morris is a registered nurse.
6 The department initially rejected both of Mr Paterson’s applications for personal leave. Following a review and after Mr Paterson provided further information, the department accepted his claim for personal (carer’s) leave but maintained its opposition to the payment for three days personal (sick) leave.
7 The union alleges the department has, by refusing to pay Mr Paterson three days personal (sick) leave, breached either or both, the Department of Justice Prison Officers Industrial Agreement 2020 (Agreement) and the Minimum Conditions of Employment Act 1993 (WA) (MCE Act).
8 The union seeks an order requiring the department pay Mr Paterson three days’ personal (sick) leave, as well as the imposition of pecuniary penalty.
9 For the reasons set out, I have concluded the department should have approved Mr Paterson’s request for personal (sick) leave and by its refusal, the department has breached the Agreement.
Union’s Claim
10 On 22 March 2022, the union, through its solicitors, filed an originating application under s 83 of the Industrial Relations Act 1979 (WA) (IR Act), with an accompanying statement of claim, setting out the particulars of its allegations against the department.
11 In summary, the union alleged the department, breached either or both, cl 71.1 of the Agreement and s 19 of the MCE Act by refusing Mr Paterson’s claim for personal (sick) leave.
12 The union claimed the department, through its superintendent and others, who assessed Mr Paterson’s personal (sick) leave application, breached cl 71.1 of the Agreement by refusing to accept evidence Mr Paterson provided, which met the minimum evidentiary requirements under cl 73.5(a).
13 Either in addition to or in the alternative, the union alleged that by refusing Mr Paterson’s claim for personal (sick) leave, the department breached s 19 of the MCE Act. The department did this by refusing to accept evidence as contemplated by s 22 of the MCE Act, that ‘would satisfy a reasonable person of the entitlement’.
14 In relation to s 5 of the MCE Act, the union claimed:
(i) all employees are entitled to receive the minimum conditions provided under the MCE Act;
(ii) the minimum conditions under the MCE Act are implied in industrial awards and agreements; and
(iii) any provision of an industrial agreement that is less favourable than a minimum condition of employment under the MCE Act, has no effect.
15 The union claimed the evidentiary requirements to qualify for the payment of personal (sick) leave in the Agreement, are inferior to those in the MCE Act. To this extent, the MCE Act overrides those provisions in the Agreement.
16 On 23 February 2023, the union filed an amended statement of claim. Most of the amendments to the original statement of claim were directed to the relief the union sought and did not materially alter the original allegations the union made against the department.
Provisions of the Agreement In Issue
17 The relevant provisions of the Agreement regarding a prison officer’s entitlement to personal leave at issue are captured under cl 71, cl 72 and cl 73 of the Agreement. These provisions are relevantly extracted as follows;
71. Accessing Personal Leave
71.1 Reasonable and legitimate requests for personal leave will be approved subject to the Officer having accrued personal leave available. The Employer may allow an Officer who is unable to work to take personal leave for the following reasons:
(a) Illness/injury leave – if the Officer is unable to work because the Officer is ill or injured.
(b) Carer's leave – if the Officer is unable to work because the Officer is providing care or support to a member of the Officer's family who requires care or support because of an illness or injury to the member; or an unexpected emergency affecting the member. For the purposes of carer's leave, a member of the Officer's family is a person who is related to the Officer by blood, marriage, affinity or adoption and includes a person who is wholly or mainly dependent on or is a member of the household of the Officer.
…
72. Notice of Personal Leave
72.1 An Officer may only take planned personal leave with the prior approval of the Employer having regard to the Employer's requirements and the needs of the Officer.
72.2 In the case of all other types of personal leave, wherever practicable, the Officer will give reasonable notice prior to taking personal leave. Where prior notice cannot be given, notice will be provided as early as possible on the day of absence. When giving notice the Officer will, where possible, provide an estimate of the length of absence from work and the type of the personal leave.
73. Application for Personal Leave
73.1 An Officer will complete and lodge an application for personal leave in the manner required. The application shall clearly identify the type of personal leave requested and must be submitted during the Officer's first shift on their return to work from Personal Leave. The Officer's pay will be adjusted accordingly if the application for personal leave is not lodged within this period.
…
73.3 An application for personal leave exceeding two consecutive shifts will be supported by evidence to the satisfaction of the Superintendent.
73.4 Subject to subclause 73.3, the amount of personal leave granted without the production of evidence to satisfy the Superintendent will not exceed five shifts in any calendar year.
73.5 The minimum evidentiary requirement to satisfy the Superintendent is:
(a) Illness/injury Leave – subject to subclause 73.3 and 73.4:
(i) a medical certificate from a certified medical practitioner indicating the Officer was or is unfit for work. Where the Officer is unable to obtain a medical certificate, a signed statement as per the relevant Department template will be required as an alternate.
…
(c) Carer's leave – a signed statement as per the relevant Department template outlining the name of the person requiring care, the Officer's relationship to that person, the reasons for taking leave, and the estimated period of absence.
73.6 Notwithstanding subclause 73.5, it is at the discretion of the Superintendent as to whether the evidence provided by an Officer is satisfactory, and the Superintendent may require additional evidence.
Minimum Conditions of Employment Act
18 The provisions of the MCE Act relevant to the claim are extracted below. Section 5 is in Part 2 of the MCE Act – Application of minimum conditions.
5 Minimum conditions implied in awards etc
(1) The minimum conditions of employment extend to and bind all employees and employers and are taken to be implied —
…
(aa) in any employer-employee agreement; or
(b) in any award; or
(c) if a contract of employment is not governed by an employer-employee agreement or an award, in that contract.
(2) A provision in, or condition of, an employer employee-agreement, an award or a contract of employment that is less favourable to the employee than a minimum condition of employment has no effect.
(3) A provision in, or condition of, an agreement or arrangement that purports to exclude the operation of this Act has no effect, but without prejudice to other provisions or conditions of the agreement or arrangement.
19 The provisions of the MCE Act in force on the date of the alleged contravention regarding an employee’s sick leave entitlements were in Division 2 – Personal Leave. Of relevance were s 19, s 20 and s 22, extracted as follows:
19. Entitlement to paid leave for illness, injury or family care
(1) An employee, other than a casual employee, is entitled for each year of service to paid leave under this subsection for the number of hours the employee is required ordinarily to work in a 2 week period during that year, up to 76 hours.
…
20. Employee may use entitlement as paid sick leave
(1) Subject to subsection (2), an employee who is unable to work as a result of the employee’s illness or injury, is entitled to use any part of the employee’s entitlement under section 19(1) as paid leave for periods of absence from work resulting from the illness or injury.
20 The evidence an employee seeking to access personal (sick) leave would need to provide was as set out under s 22 of the MCE Act as follows:
22. Employee to prove entitlements under this Division
An employee who claims to be entitled —
(a) to use the employee’s entitlement under section 19(1) as paid leave under section 20(1); or
…
is to provide to the employer evidence that would satisfy a reasonable person of the entitlement.
Department’s Response
21 The department denied it had, by refusing Mr Paterson’s application for personal (sick) leave, contravened the MCE Act and/or the Agreement,
22 The department contended the MCE Act does not apply to prison officers’ personal leave as they are entitled to receive a more beneficial entitlement than that provided under the MCE Act.
23 The department said the discretion the relevant superintendent has under cl 73.3 of the Agreement, to determine whether the evidence Mr Paterson provided was sufficient to support his application for paid personal (sick) leave, was exercised correctly and reasonably.
24 To this end, the department set out some of the criteria its superintendent considered when it decided to refuse Mr Paterson’s application for personal (sick) leave. They included:
a. the timing of his days off, which was for the whole of the school holidays, a period when there is a high demand from prison officers to take annual leave;
b. that he did not attempt to see a doctor, other than his regular general practitioner; and
c. prison officers almost invariably exhaust all of their personal leave entitlements in the year that they accrue.
Paterson’s Evidence
25 Mr Paterson gave evidence in support of the claim. He filed a witness statement which was tendered and admitted into evidence.
26 Mr Paterson works at the Wooroloo Prison Farm (Wooroloo). He is 56 years of age. He commenced work with the department as a prison officer in June 2012.
27 On 18 April 2019 whilst working at Hakea Prison (Hakea) Mr Paterson was assaulted by an inmate and received head injuries.
28 His medical care for these injuries, which included scans, operations and various treatments, was overseen by his treating general practitioner; Dr Oosthuizen from the Swan Medical Centre. Mr Paterson gave evidence that he regularly saw Dr Oosthuizen, including monthly for about two years until October 2020. Following this, Mr Paterson periodically continued to see Dr Oosthuizen.
29 Mr Paterson said that on or around 25 September 2021, he became unwell. He said he had a sore head and a few days later, began vomiting. He was not sure whether these symptoms were side-effects of a recent COVID vaccination, attributable to his previous injury or something else. He said he continued to be ill on 26, 27, 28 and 29 September 2021.
30 Mr Paterson gave evidence that he started to become concerned about his illness, so at 4.57 pm on 29 September 2021, he contacted the Swan Medical Centre to try and book an appointment for that afternoon. Mr Paterson attached an extract from a phone bill to his witness statement as evidence of his phone call to the Swan Medical Centre. Attachment NP 1 to the Witness Statement of Neal Paterson – Exhibit C2.

31 Mr Paterson said he was not able to obtain an appointment at the Swan Medical Centre, with any one of the 16 Doctors who work at the clinic. He said the earliest date on which he could obtain an appointment was 6 October 2022.
32 Mr Paterson said he did not book an appointment for this date, because he was hoping he would be able to call in the following day and either obtain an earlier appointment from a cancellation or to see if Dr Oosthuizen could make some room to see him, as had happened on previous occasions.
33 On 30 September 2021 Mr Paterson called the Swan Medical Centre. He said he was told Dr Oosthuizen was on holidays. He said he then requested an appointment with any doctor from the clinic and was told the earliest available appointment was not until 5 October 2021.
34 Mr Paterson said he was told most of the doctors in the Swan Medical Centre were unavailable because they were away for the school holidays. He said he did not take the 5 October appointment because it was too far out. Mr Paterson said he figured he could get emergency medical assistance if his illness became worse or by this date, he would have recovered.
35 Mr Paterson gave evidence that on 30 September 2021, he called the Officer in Charge (OIC) at the Wooroloo Prison Gatehouse (Gatehouse) and advised that he would not be at work on 1 October 2021 due to an illness. Mr Paterson said he did the same on the afternoons of 1 and 2 October, ahead of his absences on 2 and 3 October 2021.
36 Mr Paterson was not rostered to work on 4 and 5 October. On 5 October, Mr Paterson’s daughter (who was 15 at the time) started vomiting. Like he did with the days off for his own illness, Mr Paterson phoned the OIC at the Gatehouse and advised he would not be able to attend work because he would be taking carer’s leave to look after his daughter.
37 On 11 October 2021, the day he was next rostered on, Mr Paterson returned to work. He provided two statutory declarations, one in support of his application for personal (sick) leave, the other for his application for personal (carer’s) leave. Copies of these statutory declarations were admitted into evidence as agreed documents. Attachments NP2 and NP 2A.

38 On 12 October 2021, Mr Paterson received an email from staff in human resources at Wooroloo (HR), advising that Superintendent Leonie Sinclair (Supt Sinclair) had rejected both of his personal leave applications and that his days off would be treated as unauthorised leave.
39 Mr Paterson gave evidence about the steps he took to challenge Supt Sinclair’s decision to reject his applications for personal leave under the dispute procedure at cl 179 of the Agreement (Individual Disputes).
40 Although as a result of the additional information Mr Paterson provided during this process, the department reviewed and approved his application for personal (carer’s) leave, it stood by the original decision Supt Sinclair made to refuse Mr Paterson’s personal (sick) leave application.
41 Mr Paterson was cross-examined by counsel for the department. He was unshaken in the evidence he gave and I find that he provided a credible account on his applications for personal leave.
Superintendent’s Evidence
42 Supt Sinclair was called to give evidence for the department. In addition the department filed a bundle of documents that were admitted into evidence as Exhibit R2.
43 Like Mr Paterson, Supt Sinclair provided a witness statement. A summary of her evidence is provided in the paragraphs that follow.
44 Supt Sinclair, who has worked for the department for more than 33 years, was substantively appointed to the rank of superintendent in January 2017. Supt Sinclair was in charge of Wooroloo when Mr Paterson submitted his applications for personal leave.
45 Supt Sinclair described the usual practice officers at Wooroloo follow when accessing personal leave. She said they call the prison and ‘book off’, which is a colloquial term for being absent from work.
46 In most instances, officers do not provide notification of the type of leave they are intending to use. They do this upon their first shift back when they are required to complete and submit a personal leave application form.
47 Supt Sinclair said she assesses applications for personal leave fairly and reasonably, on a case-by-case basis, upon the evidence provided in support of the request, according to the department’s policies and guidance provided by the industrial relations team.
48 Supt Sinclair said that because prison officers perform shift work, this assessment is made after the officer has taken the time off and usually without speaking to the officer in-person. In relation to Mr Paterson’s claim, Supt Sinclair said she reviewed the forms he submitted as well as the two statutory declarations he provided.
49 She concluded Mr Paterson had not provided evidence to meet the minimum evidentiary requirements under cl 73.5(a)(i) and cl 73.5(c) of the Agreement. She said that based on the information Mr Paterson was unwell from 29 September until 3 October and he was absent from work for more than two rostered shifts, Supt Sinclair was of the view it was reasonable for her to require Mr Paterson to provide medical evidence of his illness.
50 Additionally, it was Supt Sinclair’s opinion that Mr Paterson’s statement did not provide a reasonable explanation as to why he was unable to obtain a medical certificate.
51 Noting both of Mr Paterson’s statutory declarations were witnessed by the same registered nurse, who had not provided a medical stamp or clinic details, Supt Sinclair decided to inquire as to whether her signature met the requirements for an authorised witness for statutory declarations.
52 Supt Sinclair noted Mr Paterson’s applications for personal leave were on days that immediately followed those on which he was rostered off; were for a continuous period; and during the October school holidays.
53 Supt Sinclair said that when considering applications for personal leave, she looked at whether there is a pattern of applications for personal leave around rostered days off, public or school holidays.
54 Supt Sinclair said school holiday periods are much sought after. The Agreement does not allow prison officers to choose when they can take the bulk of their annual leave because it is allocated according to a leave roster.
55 Supt Sinclair said prison officers can make requests to take annual leave at times other than those on the leave roster, however the officers must have special reasons for doing so. She said not all applications from prison officers for annual leave can be approved.
56 Matters such as prison priorities; staffing numbers (vacancies); the number of other prison officers away on annual leave; workers compensation; approved overtime allocations; the number of officers available for overtime; and the number of positions that have to be filled for day/night shifts, all form part of her consideration for requests to take annual leave, at times outside the leave roster.
57 Supt Sinclair said that where a prison officer advises her of complex personal matters and the like, she will consider those circumstances and any relevant evidence to accommodate absences from work. She said she had recently considered and approved an application of this type at the Broome Regional Prison.
58 Supt Sinclair said that because Mr Paterson’s absences coincided with the school holiday period and prison officers as a cohort have a high utilization of personal leave across the ‘Estate’, she was of the view it was reasonable for her to require a medical certificate.
59 Supt Sinclair gave evidence about the department’s response to the dispute Mr Paterson raised under cl 179 of the Agreement. She confirmed Deputy Commissioner (DC) Brampton reviewed Mr Paterson’s personal leave applications.
60 Supt Sinclair said that while DC Brampton accepted the additional information Mr Paterson provided in support of his personal (carer’s) leave application met the minimum evidentiary requirements under the Agreement, he endorsed her decision to refuse Mr Paterson’s personal (sick) leave application.
61 As a result, Mr Paterson’s application for personal (carer’s) leave was approved but his application for personal (sick) leave was refused. Like Supt Sinclair, DC Brampton was not prepared to accept Mr Paterson’s application for personal (sick) leave without a medical certificate.
62 Supt Sinclair said that in reaching her decision to refuse Mr Paterson’s application for personal (sick) leave, she considered the ‘Superintendent’s Guidance Note No 4 – Personal Leave’ (SGN 4). A copy of SGN 4 was provided in the agreed bundle of documents, that was accepted into evidence. SGN 4 is included in the Bundle of Agreed Documents – Exhibit R2.
Supt Sinclair stated the contents of SGN 4 ‘align’ with the personal leave provisions in the Agreement.
63 Supt Sinclair was cross-examined by counsel for the union. I find Supt Sinclair provided a credible account of how she dealt with Mr Paterson’s personal leave applications.
64 Although for the reasons that follow, I have found Supt Sinclair’s decision to refuse Mr Paterson’s personal (sick) leave application was unreasonable and in breach of the Agreement, I make no adverse findings about her as a witness.
Union Submissions
65 Both parties filed outlines of submissions in this matter. The union in its submissions argued the reason the department rejected Mr Paterson’s application for personal (sick) leave is either because he did not provide a medical certificate as the Agreement required or it did not accept the explanation he provided as to why he could not get one.
66 The union submitted this was unreasonable because a medical certificate is not the only form of evidence required under the Agreement to access personal (sick) leave entitlements.
67 The union argued the correct evidentiary test that should have been applied by the department is whether Mr Paterson provided evidence that would satisfy a reasonable person under s 22(a) of the MCE Act. The union argued the department did not apply or have regard to this test or if it did, it’s application of the test was unreasonable.
68 The union submitted the conditions in the Agreement that are less favourable than the personal leave provisions in the MCE Act are cl 73.5 and cl 73.6, which are extracted above. The union argued to the extent the clauses in the Agreement require the provision of evidence that exceeds the level needed to satisfy a reasonable person, those clauses have no effect and the relevant sections of the MCE Act apply in their place.
69 Relying upon the Commission in Court Session (CICS) decision in Dardanup Butchering Co (2004) 84 WAIG 2739 (Dardanup), the union submitted the requirement to produce a medical certificate is arguably less favourable than the burden of ‘evidence that would satisfy a reasonable person of the entitlement’. Dardanup at [31].

70 The union submitted that the information in the statutory declaration Mr Paterson provided would be accepted by a reasonable person and having provided such proof of illness, Mr Paterson should have received payment for personal (sick) leave unless the employer had good reason to reject his claim.
71 The union submitted Mr Paterson’s attempt to make an appointment with any one of the 16 doctors who work at the Swan Medical Centre was sufficient. The union argued Mr Paterson’s claim should not have been rejected on the basis of reservations the department may have held about why he could not obtain a medical certificate.
72 The union argued the statutory declaration Mr Paterson provided was over and above the minimum evidentiary requirement under cl 73.5 of the Agreement. The union submitted the items listed under cl 73.5 are the not only evidentiary requirements that must be supplied to receive an entitlement to personal (sick) leave.
73 The union submitted cl 73.5 permits an alternative to the provision of a medical certificate, which Mr Paterson supplied. The union said a statutory declaration is better than the alternative option under cl 73.5, which is the provision of a signed statement, using the department’s template.
74 The union argued that when considering whether the department had exercised its discretion reasonably, the Court is required to consider all factors and surrounding circumstances and not just the direct evidence supplied.
75 The union submitted this includes considering whether the department took irrelevant considerations into account; bad faith; disregard to public policy; and the incorrect interpretation of statute. The union submitted all of these factors must be considered against the reasonable person evidentiary test under s 22(a) of the MCE Act, so as to determine whether the denial of Mr Paterson’s personal (sick) leave was reasonable or not.
The Safety Representative Allegations
76 During the hearing, the department objected to evidence the union sought to rely on to the effect the department had refused to accept Mr Paterson’s application to take personal (sick) leave, because he had in his capacity as an occupational health and safety representative, raised safety complaints with the superintendent.
77 The department argued that as a matter of procedural fairness these allegations had not been properly or clearly particularised against the department and so the union should not be permitted to press these matters at the hearing.
78 The union argued it had put the department on notice of these matters both in its originating and amended statements of claim and by raising them in Mr Paterson’s witness statement. The union submitted that as a result, it was entitled to continue to press these matters as part of its claim.
79 I accepted the department’s submissions on this point. Each party to the proceedings should have adequate notice of the case that will have to be met at the trial. Banque Commerciale en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-287, also see McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 at [21] – [22].

80 A review of the particulars in the originating and amended statements of claim shows the union did not directly raise or clearly put the department on notice of these allegations. To permit the union to press these matters without proper notice would have been unfair to the department.
81 For this reason, I declined to admit into evidence those paragraphs of Mr Paterson’s witness statement in which these matters were raised and to allow the questioning of witnesses on these allegations, as they were not raised in the union’s originating and amended statements of claim.
82 If the union had wanted to press these allegations against the department, it should have done so directly and provided clear particulars of the specific conduct alleged, prior to submitting its evidence and well in advance of the trial.
Department’s Submissions
83 In its outline of submissions, the department argued the claim concerns a narrow issue; whether it breached s 22(a) of the MCE Act or cl 73.3 of the Agreement, by refusing Mr Paterson’s application for personal (sick) leave, in the absence of him providing a medical certificate to support his claimed illness.
84 The department submitted cl 73.5 requires applications for personal leave for periods exceeding two (2) consecutive shifts, to be supported by evidence to the satisfaction of the superintendent.
85 The department argued that although an officer may submit a signed statement as per the relevant department template where an officer is unable to obtain a medical certificate, it does not follow that providing such evidence requires the granting of the leave applied for.
86 The department argued ‘minimum’ has its normal meaning in relation to this procedural ‘evidentiary requirement’, namely ‘the least’ rather than ‘the only’. It argued ‘satisfy’ for the purpose of cl 73.5 means ‘convince’.
87 The department argued cl 73.3 places a qualification on cl 73.5. While the minimum evidentiary requirement to satisfy the superintendent is stipulated in cl 73.5(a) the effect of cl 73.3 is to give the superintendent a discretion as to whether some other evidence is required to determine an application for personal leave. This is consistent with the meaning of the minimum evidentiary requirement.
88 The department argued that notwithstanding cl 73.5, a superintendent has a discretion under cl 73.6 to determine whether the evidence provided by an officer is satisfactory and in respect of which, a superintendent may require additional evidence.
89 The department submitted that meeting the procedural evidentiary requirement for making an application for personal (sick) leave does not automatically give rise to an entitlement to the leave sought. That still depends upon the officer establishing he/she was unable to work because of illness. Spasojevic v Speaker of the Legislative Assembly [2023] WAIRC 00001 at [61] – [63].

90 The department submitted that, in the context of an agreement that does not allow officers to choose when they can take annual leave, when annual leave during school holidays is highly sought after and where there is a high utilization of personal leave by officers, it was reasonable for the superintendent to require a medical certificate as the primary minimum evidence.
91 To this end, the department submitted that while Mr Paterson may not have been able to see his regular general practitioner, he could have and should have, attended other medical practices or utilised other services such as telehealth, to obtain a medical certificate.
92 The department argued it was reasonable in the circumstances for Supt Sinclair to have regard for these matters when considering Mr Paterson’s personal (sick) leave application. It submitted Mr Paterson did not reasonably attempt to obtain a medical certificate.
93 The department argued Mr Paterson failed to provide a reasonable explanation as to why he could not obtain a medical certificate, which is a requirement of cl 73.5(a)(i) and that he needed to establish this first before he became entitled to submit a statement in lieu of a medical certificate.
94 When exercising the discretion as to whether the evidence provided is to the satisfaction of the superintendent, the department submitted it cannot be in a manner that is arbitrary, capricious or unreasonable. Vincent v Department of Finance [2016] WAIRC 00035.
In relation to this, the department argued Supt Sinclair did not act in this way.
95 The department submitted the personal leave provisions of the MCE Act were not implied as the Agreement makes provision for more beneficial personal leave entitlements. For this reason, the department contended the evidentiary requirements under s 22(a) of the MCE Act do not apply to claims for personal leave under the Agreement.
96 In addition, the department says that by the express wording in the statute, the evidentiary requirements under s 22(a) only apply to claims for personal leave made under Division 2 of the MCE Act.
97 The department submitted that if s 22(a) does apply to claims for personal leave under the Agreement, Supt Sinclair’s decision that Mr Paterson’s personal leave application should have been evidenced by a medical certificate, was not unreasonable in the circumstances.
Interpreting The Agreement
98 In determining whether a party has contravened or failed to comply with a provision of an industrial instrument, an Industrial Magistrate's Court must necessarily interpret the provisions of an industrial agreement in accordance with the principles that apply to the interpretation of industrial agreements. Director General, Department of Education v United Voice WA [2013] WASCA 287; (2013) 94 WAIG 1. Also see The Australian Rail Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2017] WAIRC 00830 at [75].

99 Interpreting an industrial agreement involves ascertaining what a reasonable person would have understood the parties to the agreement to mean. Director General, Department of Education v United Voice WA [2013] WASCA 287; (2013) 94 WAIG 1 per Buss J at [81].

100 The relevant principles for interpreting industrial instruments are well established. They were most recently summarized by a Full Court of the Federal Court of Australia in Target Australia Pt Ltd v Shop Distributive and Allied Employees Association [2023] FCAFC 66 per Bromberg J at [8]
101 Referring to WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [197] His Honour Bromberg J set out these principles as follows:
The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 (Holmes) at 378 (French J). The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 (Amcor) at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).
102 These principles are consistent with those that have been adopted and applied to the interpretation of industrial instruments by the Industrial Appeal Court. Director General, Department of Education v United Voice WA [2013] WASCA 287; (2013) 94 WAIG 1. Also see The Australian Rail Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2017] WAIRC 00830 at [75] – [80].
They have also been cited with approval by the Full Court of the Federal Court on numerous occasions. Target Australia Pty Ltd v Shop Distributive and Allied Employees Association [2023] FCAFC 66 at [9].

103 Applying these principles of interpretation, I have made a number of findings about how the personal leave provisions of the Agreement are to be interpreted and applied.
Personal (Sick) Leave Entitlement Under The Agreement
104 Clause 70.1 of the Agreement sets out the entitlement to paid personal leave under the Agreement. An officer engaged on full time basis is entitled to receive 124 hours paid cumulative personal leave for each completed year of continuous service.
105 To access this entitlement, cl 71.1 relevantly provides that reasonable and legitimate requests for personal leave will be approved, subject to an officer having personal leave available.
106 Clause 71.1 then describes the circumstances for which personal leave may be taken. The relevant categories of personal leave include the following:
(a) illness or injury;
(b) carer’s leave to provide care or support to a member of an officer’s family;
(c) unanticipated matters of a compassionate or pressing nature;
(d) planned personal leave where an officer is unable to work because the officer must attend to planned matters and arrangements cannot be made to schedule those matters, outside of normal working hours or be accommodated by utilising flexible working hours or other leave.
107 Having regard to the evidence, it is clear the latter two categories of personal leave do not require examination in this case.
108 Clause 72 of the Agreement sets out the notice an officer is required to give the department prior to taking personal leave. There is no suggestion in this matter Mr Paterson did not comply with the requirement to give notice pursuant to this clause.
109 On the evidence, Mr Paterson gave notice of his intention to take personal leave. He provided notice pursuant to the practice Supt Sinclair described in her evidence, which the officers at Wooroloo follow, to access personal leave.
Minimum Evidentiary Requirements For Personal (Sick) Leave
110 Clause 73 (Application for Personal Leave) and its various subclauses 73.1 – 73.6, not only describe the process to be followed when applying for personal leave but also the minimum evidentiary requirements that need to be met and the test to be applied by the superintendent when considering an officer’s application to use personal leave.
111 In the context of the Agreement as a whole, cl 73 establishes parameters within which requests for personal leave will be considered as reasonable and legitimate. Viewed this way, the provisions within cl 73 for the purpose of exercising the superintendent’s discretion, are both instructional and flexible.
112 Clause 73.3 requires that an application for personal leave exceeding two consecutive shifts (which is what occurred in this case), will be supported by evidence to the satisfaction of the superintendent.
113 Clause 73.4 similarly stipulates the amount of personal leave granted without the requirement to produce evidence to satisfy the superintendent, will not exceed five shifts in any year.
114 Clause 73.5 describes the evidence an officer is, at a minimum required to provide, to satisfy the superintendent a request for personal leave is both reasonable and legitimate.
115 In relation to requests to take personal leave for illness or injury, cl 73.5 relevantly requires that subject to cl 73.3 and cl 73.4, the minimum evidentiary requirement, is a medical certificate from a certified medical practitioner.
116 In the alternative however, cl 73.5 also provides, that where an officer is unable to obtain a medical certificate, a signed statement as per the relevant department template will be required.
Interpretation Of Words Used In Clause 73
117 I accept the department’s submission that ‘minimum’ for the purpose of the evidentiary requirements described in cl 73.5, has its normal meaning, which means ‘the least’, rather than ‘the only’. MacQuarie Concise Dictionary 6th Edition at p 747.

118 I also accept that where the word ‘satisfy’ is used in cl 73, it means ‘to convince’, ‘to answer sufficiently’ and ‘to fulfill the requirements of’. MacQuarie Concise Dictionary 6th Edition at p 1058.

119 Similarly, the use of the word ‘satisfaction’ in cl 73 means ‘the act of satisfying’ or ‘the discharge of obligations’. MacQuarie Concise Dictionary 6th Edition at p 1057.

Absences Of Two Days Or Less
120 The effect of cl 73.3 and cl 73.4 is that a medical certificate is not required for a single day off or for absences of two days or less. A medical certificate is also not required for a total five or less absences in any year.
121 It is clear the evidence that is required to satisfy a superintendent that a request to take personal (sick) leave under cl 73.3 and cl 73.4 is less onerous and to a much lesser standard. In these situations, an officer will, in the usual course, be taken at their word regarding the explanation they provide.
122 However, these subclauses are not to be taken to mean an employee does not have to provide a plausible and believable explanation for absences of two consecutive shifts or less or for a total of five absences across the year. To do otherwise would be inconsistent with the obligation of an employee requesting personal leave, to provide an honest explanation as to the illness or injury that prevented them from working. Spasojevic v Speaker of the Legislative Assembly 2023 WAIRC 00001 at [61] – [63].

123 A disingenuous or opportunistic use of personal (sick) leave for purposes for which it is not intended, is not without risk or consequences under the Agreement either. Clause 74 (Absenteeism Management) and cl 75 (Suspected Misuse of Personal Leave Provisions) both lay out the circumstances in which the department is entitled to apply a greater level of scrutiny to an officer’s use or potential misuse of personal leave.
124 These clauses also describe the process to be followed where the department has raised and documented any concerns it may have about an officer’s use of personal leave entitlements.
125 There is no evidence Mr Paterson’s previous use of personal leave entitlements had given the department cause to exercise its rights under cl 74 or cl 75, the relevance of which I will further address below.
Absences Of Two Days Or More
126 As indicated, cl 73.5(a)(i) requires, unless an officer is unable to obtain one, a medical certificate as proof of illness where an officer (as in this case) requests personal leave for an absence of more than two shifts in duration.
127 The approach the department has taken in this case is that where the superintendent does not accept an officer’s explanation as to why they were unable to obtain a medical certificate, a signed statement or a statutory declaration regardless of its contents would not meet the evidentiary requirements for the officer to be entitled to personal (sick) leave.
128 Put another way, if the department takes the view an officer could have done more to obtain a medical certificate but failed to do so, it could reject that officer’s personal (sick) leave application even where it does not dispute the officer was sick at the time or there was other evidence available to support the claim.
129 In my view, such a result would involve an overly restrictive and pedantic interpretation of the clause, which requires the superintendent to exercise a discretion, more broadly. The superintendent, under cl 73.6, has a much wider discretion.
130 I accept the department’s submission; when exercising a discretion under an industrial instrument, a decision maker cannot do so in a manner that is arbitrary, capricious or unreasonable. In effect, this means the superintendent must have regard to all of the relevant circumstances when exercising a discretion on whether to accept or reject an application for personal leave. Terri Vincent v Department of Finance (2016) 96 WAIG 132.

131 It is my view that the explanation an officer provides as to why they are unable to provide a medical certificate is but one of the relevant factors to be considered by the superintendent when deciding whether a request for personal (sick) leave is reasonable and legitimate. In the reasonable exercise of this discretion, all of the relevant circumstances must be considered.
Consideration - Did The MCE Act Apply?
132 Under s 5 of the MCE Act the personal leave provisions in Division 2 are applied in a number of situations including the following:
i. Under s 5(1) to ensure minimum personal leave provisions are contained in awards, contracts of employment and other industrial instruments;
ii. Under s 5(2) where provisions in awards, contracts or other industrial instruments are less favourable than those under; and
iii. Under s 5(3) where provisions in awards contracts or other industrial instruments purport to exclude minimum entitlements stipulated in the MCE Act.
133 In the present case, it was not submitted that this was a case to which the situations contemplated under s 5(1) or s 5(3) of the MCE Act apply. There is no dispute that at the time of the alleged contravention, the Agreement provided for a more generous personal leave entitlement than that prescribed under s 19 of the MCE Act.
134 The Agreement under cl 70.1 relevantly makes provision for 124 hours paid cumulative personal leave for each completed year of continuous service whereas the entitlement under s 19 of the MCE Act at the time of the alleged contravention was 76 hours.
Application Of S 5(2) Of The MCE Act
135 The claimant submitted this is a case to which s 5(2) of the MCE Act applies. As previously set out, the claimant argued this is because the evidentiary requirements to access personal (sick) under cl 73.5 are more onerous and therefore less favourable than the evidentiary requirement of ‘evidence that would satisfy a reasonable person of the entitlement’. Section 22 of the MCE Act.

136 The department dealt with this argument in two ways. First, it argued, the evidentiary requirements under s 22 only apply to claims for personal leave under Division 2 the MCE Act. Second, the department said that if stiffer evidentiary requirements applied, it was in effect a trade-off for a more beneficial leave entitlement.
137 I do not have to deal with either argument. This is because I am of the view, the evidentiary requirements to access personal (sick) leave under cl 73.3 of the Agreement are not less favourable than those in s 22 of the MCE Act.
138 There is little doubt that where there is no requirement for an officer to provide a medical certificate in support of an application for personal (sick) leave, the Agreement provides a more favourable entitlement. Dardanup.
The most obvious examples of this arise under cl 73.3 and cl 73.4, where medical certificates are not required for absences of two days or less or for a total of five shifts a year.
139 In the context of ‘Award Modernisation’ proceedings under s 40B of the IR Act, the CICS in Dardanup at [31] affirmed this view when it made the following observation regarding the provisions in industrial awards to produce evidence in support of a claim for personal (sick) leave:
In order to access a sick leave entitlement, many awards require a certificate from a medical practitioner with respect to absences of two days or more. The requirement to produce a certificate from a medical practitioner is arguably less favourable than the burden of evidence that would satisfy a reasonable person. There is also other obvious evidence that would satisfy a reasonable person, such as appearance and behaviour. Furthermore, the potential difficulty of securing an appointment with a medical practitioner to obtain proof at short notice is an issue.
140 Yet despite this observation, I do not consider the evidentiary requirements under cl 73.5 are more onerous than the test provided for under s 22(a) of the MCE Act.
141 Clause 73.5 does not mandate the production of a medical certificate for absences of more than two days. This is because cl 73.5 makes provision for an alternative. The reason an officer may not be able to produce a medical certificate is one of the matters that must be considered in the reasonable exercise of the superintendent’s overarching discretion.
142 When interpreted this way, the evidentiary requirements under cl 73.5 are equivalent to and no less favourable than the test of ‘evidence that would satisfy a reasonable person of the entitlement’. Clause 73.5 should be viewed as describing the type of evidence that would usually satisfy a reasonable person of the entitlement.
143 I do not consider cl 73.5 diminishes or places restrictions on the exercise of the superintendent’s discretion to accept evidence that would otherwise satisfy a reasonable person. As I have indicated, cl 73.5 is instructional and is to be applied subject to the reasonable exercise of the superintendent’s discretion.
144 Having reached the finding the Agreement makes provision for personal (sick) leave entitlements that are not less favourable than those contained in the MCE Act, I have concluded the MCE Act did not apply for the purposes of determining Mr Paterson’s personal (sick) leave entitlement. Accordingly, the union’s claim the department breached the MCE Act when it refused Mr Paterson’s personal (sick) leave application cannot be made out.
Consideration – Did The Department Breach Clause 71.1 Of The Agreement?
145 Having determined the MCE Act did not apply in this case, the issue that requires determination is whether the department breached cl 70.1 of the Agreement by refusing Mr Paterson’s application for personal (sick) leave.
146 In relation to this, Supt Sinclair made a number of errors in the exercise of her discretion which rendered the decision to refuse Mr Paterson’s personal (sick) leave application unreasonable.
147 I do not accept that Mr Paterson did not make a reasonable attempt to obtain a medical appointment. The evidence establishes he tried daily in the period 30 September to 2 October to obtain an appointment at a practice where at least 16 doctors worked.
148 In the context of the COVID pandemic and his particular medical history, it was reasonable in all of the circumstances, for him to have focused his efforts on obtaining an appointment at his usual practice, the Swan Medical Centre. If he had made a lesser effort, I may have taken a different view but the evidence establishes that despite his best efforts, he was not able to get an appointment to obtain a medical certificate.
149 Having concluded Mr Paterson had a reasonable explanation as to why he could not obtain a medical certificate, it is my view the provision of a detailed statutory declaration met the minimum evidentiary requirement under cl 73.5(a)(i) of the Agreement.
Other Matters The Department Should Have Viewed Differently
150 While I understand Mr Paterson’s request to take leave may have come at an inconvenient time for the department, it is reasonable to conclude Mr Paterson’s sickness was more a case of unfortunate timing rather than by design.
151 There is no evidence Mr Paterson was attempting to take personal leave just so he could have time off over the school holidays. Put another way, there was no evidence for the department to refuse his personal leave application on the grounds it was disingenuous or taken for an ulterior purpose. In the circumstances, his request to take personal leave ought to have been viewed as reasonable and legitimate.
152 Relevant to this, there was no evidence Mr Paterson had, prior to his application for personal leave, applied to use annual leave over the school holiday period which was refused. I raise this because the refusal of a prior leave request would have placed this matter into an entirely different context.
153 There was also no evidence about Mr Paterson’s previous use of personal (sick) leave or other leave. There was no evidence his prior use of personal (sick) leave had given the department cause to take management action under cl 74 or cl 75 of the agreement in relation to his use of personal (sick) leave.
154 Other than a general view the department held about the rates of absenteeism amongst prison officers, there was no evidence peculiar to Mr Paterson, giving rise to a reasonable suspicion that his request to take personal leave was anything other than legitimate.
155 The superintendent’s reliance on the high rate of prison officer absenteeism and the preference of officers to take their annual leave during school holidays without more evidence specific to Mr Paterson did not provide a reasonable basis to refuse his request to take personal (sick) leave.
156 I also consider the superintendent should have viewed the role of Ms Morris as a witness to his statutory declaration very differently. Rather than confining her inquiry as to whether Ms Morris was a person authorised to witness Mr Paterson’s statutory declaration, there were other matters about this document Supt Sinclair ought to have turned her mind to when exercising her discretion.
157 Firstly, a statutory declaration as an evidentiary source is to a standard much higher than a signed statement as per the relevant department template. Submitting and signing a statutory declaration is a serious step, which should not be taken lightly.
158 Secondly, the length of the absence for which Mr Paterson relied upon a statutory declaration as evidence in support of his claim for personal (sick) leave was also relevant. In the present matter it was for a three day absence.
159 The production of a statutory declaration which described his symptoms and illness for one day beyond the two day period for which it would usually be expected an officer would be able provide a medical certificate in the circumstances of this case, was reasonable.
160 If, however, Mr Paterson had sought to rely upon a statutory declaration for a longer absence, depending on the circumstances, it is likely I would have formed a different view about the reasonableness of his request to take personal (sick) leave, without the production of a medical certificate.
161 Thirdly, although Ms Morris is not a medical practitioner, as a registered nurse, Ms Morris is a health professional, who is in a position to directly verify the matters described in Mr Paterson’s statutory declaration.
162 The other matters that were unchallenged, which the superintendent and ultimately the department should have attached greater weight to included:
i. The department had accepted the truth of the evidence Mr Paterson provided in support of his application for personal (carer’s) leave, that he was sick;
ii. The contents of Mr Paterson’s email of 20 October 2021 that was attached to his witness statement (NP-5) regarding his exposure to a sick colleague on 21 September 2021, who went home from work with similar symptoms to those Mr Paterson described in his statutory declaration and that he may have had a reaction to his second COVID vaccination;
iii. Mr Paterson had previously obtained medical certificates in support of personal (sick) leave applications. Exhibit R2, Dispute Resolution Form - Stage 2 pp 12-13
Having obtained these certificates previously, it was reasonable to conclude he would have likely obtained one if he had been able to secure an appointment at the Swan Medical Centre.
163 It is my view that to Mr Paterson’s detriment, the Department, by the decisions Supt Sinclair and subsequently DC Brampton made, failed to have proper regard to the further information in NP-5, which Mr Paterson provided in support of his personal (sick) leave application.
Guidance Note Number 4
164 It is likely the guidance note (SGN 4) which Supt Sinclair and the department relied upon in assessing Mr Paterson’s personal (sick) leave application, lead the superintendent into error.
165 Page 2 of SGN 4 states:
Officers working or living in all Metropolitan locations would reasonably be expected to provide a medical certificate as minimum evidence for absences of Personal Leave - Illness/injury exceeding two consecutive shifts or more.
166 It also states;
The term medical practitioner refers to a person who is registered in the medical profession (being a general practitioner (GP) or specialist medical doctor). This title is protected by legislation and other health professionals, such as psychologists, dentists, chiropractors are not medical professionals, and as such, are not medical practitioners.
167 There were a number of difficulties that emerge from these paragraphs in SGN 4. Firstly, SGN 4 is not the Agreement. Rather, it is a document which sets out an opinion on how the personal leave provisions of the Agreement should be interpreted an applied.
168 Second, it should not be assumed it will be easy for officers, even those within the metropolitan area, will be able to get in to see a doctor.
169 Third, the legitimacy and reasonableness of Mr Paterson’s request to take personal (sick) leave could not be divorced from and should have been viewed against the background of the COVID pandemic.
170 It is well known that demands were placed on the health system and measures were adopted discouraging people with potential COVID symptoms from attending medical practices and workplaces when sick. It is my view the superintendent failed to have proper regard to these considerations.
171 Fourth, Mr Paterson lives if not just outside, but on the edge of the Perth metropolitan area. This, in addition to the timing of Mr Paterson’s illness, which coincided with a long weekend and school holidays and in the midst of the pandemic, each of which adversely affected the availability of medical practitioners, although inconvenient, are factors the superintendent should have reasonably considered to Mr Paterson’s benefit.
172 Finally and as indicated, whilst I accept other health professionals cannot issue medical certificates, they can, depending on the illness in issue, provide qualitative evidence of symptoms they observe. This is evidence, a superintendent may have regard to when assessing whether a claim for personal (sick) leave is legitimate and reasonable.
Conclusion
173 For all of the reasons outlined in the preceding paragraphs, I have concluded the department breached cl 71.1 of the Agreement when the department, through Supt Sinclair and subsequently DC Brampton, refused to accept Mr Paterson’s request to take personal (sick) leave for three shifts on 1 – 3 October 2021.
174 Having reached this decision, I will make an order under s 83(1) of the IR Act requiring the department pay Mr Paterson three days personal leave for the three dates referred to.
175 I will also hear from the parties as to whether any further orders under s 83 of the IR Act should issue regarding the department’s breach of cl 71.1 of the Agreement.





T KUCERA
INDUSTRIAL MAGISTRATE