WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2017 WAIRC 00109

DELIVERED : Wednesday, 1 March 2017

FILE NO. : M 172 OF 2014

CLAIMANT

AND

The Minister for Corrective Services

Respondent

CatchWords : Alleged failure to comply with Department of Corrective Services - Registered Nurses (ANF) Industrial Agreement 2010 – Entitlements after employment ends – Pro-rata long service leave – Paid overtime after elect to accrue time in lieu of payment.

Legislation : Public Sector Management Act 1994
Workers’ Compensation and Injury Management Act 1981
Industrial Relations Act 1979
Long Service Leave Act 1958

Instrument  : Department of Corrective Services – Registered Nurses (ANF)
    Industrial Agreement 2010
    Water Corporation Enterprise Agreement 2004
    Children’s Hospital Child Care Centre Association Inc. Enterprise
    Bargaining Agreement 2005

Case(s) referred to
in reasons  : Mohebatullah Mohazab v Dick Smith Electronics Pty Ltd (No 2)
    (1995) 62 IR 200
    Comcare v Martin [2016] HCA 43
    Travel Compensation Fund v Tambree T/As R Tambree and
    Associates [2005] HCA 69
    Director General, Department of Education v United Voice WA
    [2013] WASCA 287
    City of Wanneroo v Australian Municipal, Administrative, Clerical
    And Services Union [2006] FCA 813
    Communications, Electrical, Electronic, Energy, Information,
    Postal, Plumbing and Allied Services Union of Australia v
    Excelsior Pty Ltd [2013] FCA 638
    The State School Teachers' Union of W.A. (Incorporated) v The
    Governing Council, South Metropolitan TAFE [2016]
    WAIRComm 291
    Public Transport Authority of Western Australia v Yoon [2017]
    WASCA 25
    United Voice WA v The Minister for Health [2011] WAIRComm
    1065
    BP Refinery (Western Port) Pty Ltd v President, Councillors and
    Ratepayers of the Shire of Hastings (1977) 180 CLR 266
    Dolly Holzinger v Midland Information, Debt and Legal Advice
    Service Inc [2004] WAIRC 11392
    Griggs v Noris Group of Companies [ 2006] SASC 23

Result : Claim dismissed

Representation:

Claimant : Mr K. Singh as agent employed by Chapmans Barristers & Solicitors.

Respondent : Ms L. Allen as counsel.

REASONS FOR DECISION

Introduction

1         Martin Fedec (Mr Fedec) was employed by the respondent to work as a nurse at Bandyup Women’s Prison until his employment ended on 24 March 2014. The terms and conditions of his employment are found in the Department of Corrective Services – Registered Nurses (ANF) Industrial Agreement 2010 (AG 28 of 2011) (the Industrial Agreement). Mr Fedec’s employment ended as a result of his resignation being accepted by the respondent. The resignation of Mr Fedec was a term of the settlement of a workers’ compensation claim. Mr Fedec had lodged the claim following an injury to his back after a fall at Bandyup Women’s Prison on 11 July 2011 (the Workers’ Compensation Claim). At a conference convened on 24 March 2014 in connection with the Workers’ Compensation Claim, an agreement was reached for the settlement of the Workers’ Compensation Claim. The terms of that agreement included the payment of a lump sum to Mr Fedec and for his resignation from his employment by the respondent with effect from 24 March 2014. This case is about a dispute over Mr Fedec’s claim to payments for pro-rata long service leave in the sum of $4,519.87 (Pro-rata Long Service Leave claim) and for overtime worked during the course of his employment in the sum of $1,295.71 (Overtime claim).

Pro-rata Long Service Leave Claim

2         Clause 29 of the Industrial Agreement provides, subject to conditions, for long service leave and cl 29(11) provides, subject to conditions, for ‘payment in lieu of long service proportionate’ to an employee’s length of service. Mr Fedec relies upon the terms of cl 29(11)(a)(iii) providing for a pro-rata payment where an employee has completed at least 12 months’ continuous service and the employment ‘has been ended by his/her Employer on account of incapacity due to old age, ill health or the result of an accident’. The respondent contends, inter alia, that the conditions for payment of pro-rata long service leave found in cl 29(11) have not been satisfied in that:

(a)   Mr Fedec’s employment was ended by his resignation and was not ended ‘by the Employer’;

(b)   Mr Fedec’s employment was ended on account of the settlement of the Workers Compensation Claim and was not ended on account of ‘ill health or an accident’; and

(c)   Although cl 29(11)(a)(iii) provides for a pro-rata payment where an employee has completed at least 12 months continuous service (and other conditions are satisfied), the opening words of cl 29(11)(a) providing for an entitlement to pro-rata long service leave ‘if the employment ends before he/she has completed the first further qualifying periods in accordance with’ cl 29(1) may have the effect of delaying entitlement until to a pro-rata payment until after ten year continuous service.

The issue for determination is whether, properly construed, the application of the cl 29(11) of the Industrial Agreement to the facts of Mr Fedec’s situation has the result that he is entitled to pro-rata long service leave as claimed?

Overtime Claim

3         Clause 24(1) of the Industrial Agreement provides that ‘an employee authorised to work overtime will be paid overtime provided that an employee may elect to accrue time off in lieu of payment’. Mr Fedec alleges that, as at 24 March 2014 he had elected to accrue 1830 minutes of time off in lieu of $1,295.71 in paid overtime. He submits that, given the circumstances of the end of his employment, he was unable to use the time off and became entitled to the paid overtime. The Respondent contends that:

(a)   Mr Fedec has failed to prove that the overtime upon which he claims was properly authorised;

(b)   the Industrial Agreement does not provide for an entitlement to be paid overtime where, before the employment relationship has ended, an employee has not sought to reverse the election to accrue time off in lieu.

There are two issues issue for determination. First, whether I am satisfied that the overtime upon which he claims was properly authorised? Secondly, whether, properly construed, the application of the Industrial Agreement, and particularly cl 24, to the facts of Mr Fedec’s situation has the result that he is entitled to paid overtime as claimed?

Facts

4         In this claim, Mr Fedec carries the burden of proving his claim. The standard of proof required to discharge the burden is proof ‘on the balance of probabilities’. Where in this decision I state that 'I am satisfied' of a fact or matter I am saying that 'I am satisfied on the balance of probabilities' of that fact or matter. Where I state that 'I am not satisfied' of a fact or matter I am saying that 'I am not satisfied on the balance of probabilities' of that fact or matter.

5         Save for one issue (overtime authorisation), the facts relevant to my determination of the issues are either not in dispute or are the subject of uncontroverted evidence that I consider to be reliable. I am satisfied of each of the facts set out below. On the issue of overtime authorisation, I have summarised the relevant evidence and set out reasons for my findings of fact.

6         On 11 July 2011 Mr Fedec was working as a nurse. He was working in a part-time or casual capacity at Bandyup Women’s Prison. On that day, he suffered an injury at work as a result of slipping on a deck. He completed and lodged a worker’s compensation claim form soon after the injury he suffered on 11 July 2011 (the Workers Compensation Claim).

7         Although he continued to be employed as a nurse at Bandyup Women’s Prison until 24 March 2014, ‘worker’s compensation progress medical certificates’ were also issued for significant periods, particularly toward the end of his employment.

8         Mr Fedec’s employment status changed when on 1 February 2012 he commenced work as a full-time employee of the Minister for Corrective Services.

9         While working at Bandyup Women’s Prison, Mr Fedec maintained his own computer record of overtime hours that he worked (the Overtime Record) in the form of a table with columns headed ‘date’, ‘event’, ‘time’ and ‘TOIL’ and a separate row corresponding to each date entry. Mr Fedec’s evidence was that each row reflected the details of overtime that had been approved by his supervisor or leave taken by him that had been approved by his supervisor; the TOIL column was said to be a recording the ‘balance’ of accrued overtime in ‘minutes’.  The Overtime Record states that Mr Fedec worked overtime in:  December 2012, January 2013, February 2013, March 2013, April 2013, May 2013, June 2013, July 2013, August 2013 and September 2013. It states that he took leave in January 2013 and June 2013. The balance in the TOIL column at the end of the document is recorded as an entry on 2 September 2013: 1830 minutes.

10      The respondent disputes the reliability of the Overtime Record on two grounds. First, it submits that it is implausible or inherently unlikely that Mr Fedec was not required by a supervisor at Bandyup Women’s Prison to utilise ‘departmental forms’ for the purpose of recording overtime and leave. I do not accept the submission. The respondent did not tender any evidence to contradict Mr Fedec’s evidence that no such forms were used in his workplace. There is no reason not to accept the evidence of Mr Fedec on this issue. Secondly, the respondent submits that Mr Fedec is not a truthful witness because of an ‘admission’ that he is currently working as a nurse, when, in August 2013, for the purpose of the Workers’ Compensation Claim, he maintained that he had a permanent impairment. My view is that Mr Fedec satisfactorily answered the submission when he said, in effect, that he currently works as a nurse notwithstanding the continued existence of a permanent impairment in the form of ‘left-sided low-back pain’ (described in a letter from Dr Brian Galton-Fenzi to RiskCover on 28 November 2013). I am satisfied as to the reliability of the Overtime Record.

11      Mr Fedec was not paid for the 1830 minutes of overtime he worked. The ‘value’ of that overtime under the Industrial Agreement, if Mr Fedec had been paid, was $1,295.71. The reason that Mr Fedec has not paid for the overtime that he worked is that he did not, during the period that he was employed, make a claim for payment for that overtime. The reason that he did not make a claim for paid overtime is that he intended to take advantage of the ‘time off in lieu of payment’ conditions of his employment by requesting authorised ‘time off in lieu’ to the extent of the 1830 minutes. Mr Fedec did not make that request before his employment ended on 24 March 2014.

12      On the 24 March 2014 Mr Fedec and his solicitor attended a conference in connection with the Workers’ Compensation Claim. Negotiations commenced with view to settlement of that claim. The negotiations canvassed, inter alia, the amount of a lump sum to be paid to Mr Fedec and whether Mr Fedec would resign from his employment by the respondent. Mr Fedec’s position during the negotiations was that he was not willing to resign and the respondent’s position in the negotiations was that it required his resignation. The negotiations ended upon the parties reaching an agreement to settle of the Workers’ Compensation Claim. The agreement provided, inter alia, for payment of a lump sum to Mr Fedec and for Mr Fedec to resign with effect from 24 March 2014.

13      Reflecting that agreement, at the conclusion of the conference, Mr Fedec signed a hand-written note. The note read:

I, Martin Fedec, agree that as a part of my worker’s compensation settlement I will resign from my employment with Department of Corrective Services. I will tender my letter of resignation in exchange for the settlement monies.

14      On 30 March 2014 Mr Fedec posted a letter to the respondent. The letter bears two dates; a typed date 24 March 2014 and a hand-written date under Mr Fedec’s signature. The handwritten date is 30 March 2014. The letter states:

I hereby give notice of resignation from my employment with Department of Corrective Services effective 24 March 2014 but subject to receiving the settlement monies. Please forward my outstanding entitlements to the above address.

15      The letter continues in hand-writing:

As well as monies outstanding for time off in lieu and my annual leave entitlements to be paid on the next pay cycle.

Principles relevant to the Construction of an Industrial Agreement

16      I have noted in the introduction that the resolution of the issues for determination of this case requires the construction of the Industrial Agreement. It is convenient to set out the principles, relevant to this task, that have been enunciated by higher courts:

(a)   The construction of an instrument involves ascertaining the intention of the parties at the time that the instrument was made. This is determined by ascertaining what a ‘reasonable person would have understood the words of the instrument to mean’ and not the subjective intention of the parties.
Director General, Department of Education v United Voice WA [2013] WASCA 287 [18] – [19] Pullin JA, Le Miere AJA agreeing; Buss JA at [81] - [84].

(b)   Ascertaining the intention of the parties begins with a consideration of the ordinary meaning of the words of the instrument. Ascertaining the ordinary meaning of the words requires attention to the context and purpose of the clause being construed.
City of Wanneroo v Australian Municipal, Administrative, Clerical And Services Union [2006] FCA 813 [53] – [57] (French J).

(c)   Context may appear from the text of the instrument taken as a whole, its arrangement and the place of the provision under construction. The context includes the history of the instrument and the legal background against which the instrument was made and in which it was to operate.
City of Wanneroo [53] – [57]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelsior Pty Ltd [2013] FCA 638 [28] - [30] (Katzmann J).

(d)   One relevant contextual consideration is that regard may be had to industrial realities. ‘There is a long tradition of generous construction over a strictly literal approach’. ‘Courts will not make too much of infelicitous expression in the drafting nor be astute to discern absurdity or illogicality or apparent inconsistencies.’  That said, a court must not determine an issue of construction on a ‘notion of what is fair
or just regardless of what is written in the instrument.
City of Wanneroo [53] – [57] (French J); Excelsior Pty Ltd [28] - [30] (Katzmann J).

Pro-rata Long Service Leave Claim

17      The relevant parts of cl 29 of the Industrial Agreement are as follows:

29. LONG SERVICE LEAVE

(1) Long Service Leave Entitlement

Subject to the conditions of this clause all employees will become entitled to 13 weeks long service leave:

(a) after a period of ten (10) years continuous service.

(b) after each further period of seven (7) years continuous service.

…

(11) Pro Rata Long Service Leave

(a) If the employment of an employee ends before he/she has completed the first further qualifying periods in accordance with subclause (1) of this clause, payment in lieu of long service proportionate to his/her length of service will not be made unless the employee:

(i) has completed a total of at least three (3) years continuous service and his/her employment has been ended by his/her Employer for reasons other than serious misconduct; or

(ii) is not less than 55 years of age and resigns but only if the employee has completed a total of not less than twelve (12) months continuous service prior to the day from which the resignation has effect; or

(iii) has completed a total of not less than twelve (12) months continuous service and his/her employment has been ended by his/her Employer on account of incapacity due to old age, ill health or the result of an accident; or

(iv) has completed a total of not less than three (3) years’ continuous service and resigns because of her pregnancy and who produces at the time of resignation or termination certificate of such pregnancy and the expected date of birth from a legally qualified medical practitioner; or

(v) dies after having served continuously for not less than twelve (12) months before his/her death and leaves his/her spouse, children, parent or invalid brother or sister dependent on him/her in which case the payment shall be made to such spouse or other dependent; or

(vi) has completed a total of not less than three (3) years continuous service and resigns in order to enter an Invitro Fertilisation Programme provided she produces written confirmation from an appropriate medical authority of the dates of involvement in the programme.

18      Mr Fedec submits that his situation falls within the provision in cl 29(11)(a)(iii) for payment of pro-rata long service leave to an employee who has completed 12 months’ continuous service and whose employment has been ended by his employer on account of ill health or the result of an accident. He points to his continuous service of over 12 months (1 February 2012 to 24 March 2014 i.e. 24 months 28 days) and the role of the respondent in requiring him to resign as a condition of settlement of the Workers’ Compensation Claim as being ‘the employer ending his employment on account of ill health or accident’. The respondent does not dispute that Mr Fedec has completed at least 12 months’ continuous service. However, the respondent contends that the effect of the settlement of the Workers’ Compensation Claim is that, by agreement, it was Mr Fedec and not ‘his Employer’ who initiated the end of his employment. My view is that, for the following reasons, the respondent is correct.

(a)   Subject to the terms of the Industrial Agreement and any agreement made by the parties, an employee and an employer are free to mutually agree to terminate the employment relationship. Clause 10 of the Industrial Agreement reflects this freedom. It provides for termination of the contract of employment in circumstances proscribed and upon notice for the periods proscribed. However, it also provides for termination at any time by an employee where ‘mutually agreed by the employee and the employer’: cl 10(6). The note signed by Mr Fedec on 24 March 2014 stated, ‘I will resign from my employment.’ It reflected an agreement between him and his employer for the termination of the employment relationship with effect from day. The existence of this (mutual) agreement is inconsistent with a characterisation of what happened on 24 March 2014 as employment ended by the respondent.

(b)   Mr Fedec relies upon a decision of the Industrial Relations Court of Australia in Mohebatullah Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] 62 IR 200; IRCA 645 [205] – [206] (Lee, Moore and Marshall JJ). There will be cases where scrutiny of the circumstances of the employee’s ‘resignation’ reveals unfair conduct of an employer such that it cannot be said that there has been a true ‘agreement’ to end the employment relationship. Indeed, the facts of Mohazab was such a case. The employee’s resignation occurred after being presented with a choice by his employer: resign or face a police investigation into an allegation of stealing. The evidence adduced by Mr Fedec on the circumstances of his resignation on 24 March 2014 do not reveal any conduct of the respondent that would suggest to me that Mr Fedec’s will was overborne in any sense that was comparable to the position of the employee in Mohazab. On 24 March 2014, Mr Fedec had a choice. He could accept or refuse the offer made to him in settlement of his Workers’ Compensation Claim. He had the opportunity to take advice from his solicitor. If he refused the offer, he would remain an employee. He accepted the offer and, pursuant to the terms of settlement, he resigned.

(c)   At issue is the meaning of the words ‘by his/her Employer’ in the phrase ‘his employment has been ended by his/her Employer on account of incapacity due to old age, ill health or the result of an accident’ in cl 29(11)(a)(iii). The words require an assessment of the causal connection between, on the one hand, the end of the Mr Fedec’s employment relationship, and on the other hand, the conduct of the respondent. In one sense it is true to say that ‘but for’ the injury to Mr Fedec on 11 July 2011, there would not have been the Workers’ Compensation Claim and ‘but for’ the position taken by the respondent during negotiations of the claim on 24 March 2014, Mr Fedec would not have resigned. However, it has been recognised that a ‘but for’ test of causation is inadequate as a comprehensive test of causation (e.g. Travel Compensation Fund v Tambree T/As R Tambree and Associates [2005] HCA 69 [25]). The better view is to examine the text and context of cl 29(11)(a)(iii) to determine the appropriate causal connection: Comcare v Martin [2016] HCA 43 [42] – [49] (French CJ, Bell, Gageler, Keane and Nettle JJ).  My view is that there are a number of indications in the text and context of cl 29 that suggest the ending of employment following an employee’s resignation is not encompassed by cl 29(11)(a)(iii). The ordinary meaning of the text ‘by his/her Employer’ suggests that the employer must have initiated a factual step necessary to end the employment relationship. A resignation is initiated by an employee. This ordinary meaning is reinforced by the content of the other subclauses of cl 29(11)(a) revealing a distinction between employee initiated terminations (pro-rata long service leave available to an employee who is aged 55 who ‘resigns’: cl 29(a)(ii)) and employer initiated terminations (pro-rata long service leave available to an employee of 3+ years whose employment ended ‘by his/her Employer’: cl 29(a)(i)). The context of cl 29(11)(a)(iii) includes the statutory power of the respondent to terminate employment on the grounds of ill health: s 39 of the Public Sector Management Act 1994 (WA) (‘a public service officer called on to retire by an employing authority on the grounds of ill health shall forthwith retire’).

(d)   The conclusion is consistent with the reasoning and result in The State School Teachers' Union of W.A. (Incorporated) v The Governing Council, South Metropolitan TAFE [2016] WAIRComm 291 [18] - [39] (Cicchini IM) to the effect that an entitlement to pro-rata long service leave ‘upon being retired by the employer’ (my emphasis) is not enlivened upon the expiration of a fixed term contract of employment.

19      My reasons in the previous paragraph resolve the Pro-Rata Long Service Leave claim against Mr Fedec. In deference to the arguments made by the parties on other aspects of this claim, I make the following additional observations:

(a)   If, contrary to my conclusion above, Mr Fedec’s employment was ended by the respondent, my view is that his employment was ended on account of his ill health. I am unable to agree with the respondent that there is a relevant distinction between ending employment ‘on account of the settlement of the Workers Compensation Claim’ and ending employment ‘on account of ill health’. The Workers’ Compensation and Injury Management Act 1981 (WA) regulates compensation for incapacity for work resulting from an injury and there is evidence of Mr Fedec suffering ill health in the form of ‘left-sided low-back pain’ as set out in a letter from Dr Brian Galton-Fenzi to RiskCover on 28 November 2013 and Mr Fedec testifying that that injury has never abated.

(b)   I have noted that, in addition to continuous service of over 12 months, the opening words of cl 29(11)(a) of the Industrial Agreement may provide for an additional period of continuous service before being entitled to pro-rata long service leave per cl 29(11)(a)(iii). The relevant opening words state that the entitlement to pro-rata long service leave arises ‘if the employment ends before he/she has completed the first further qualifying periods in accordance with’ cl 29(1). The relevant part of cl 29(1) provides that ‘all employees will become entitled to 13 weeks long service leave: (a) after ten (10) years continuous service. (b) after each further period of seven (7) years continuous service.’ The reference to ‘further’ in each of cl 29(11)(a) and cl 29(1) give rise to the possibility that an employee may not become entitled to pro-rata long service leave until after ten years (10) years continuous service and during the first of the ‘further’ period of seven (7) years continuous service i.e. the entitlement is only during the period of 10-17 years of continuous service. On this view, the use of the word ‘further’ in cl 29 (11)(a), ‘picks up’ the y year period in cl 29(1)(b) without the 10 year period in cl 29 (1)(a). An alternative possibility is place emphasis on the word ‘before’ in cl 29(11)(a) with the result that an employee becomes entitled to pro-rata long service leave if his/her employment ends at any time before he/she has completed the first further periods of seven (7) years continuous service including before the commencement of the further period of seven (7) years continuous service i.e. the entitlement is during the period of 0 - 17 years of continuous service. On this view, the use of the word ‘further’ in cl 29 (11)(a), ‘picks up’ both the 7 year period in cl 29(1)(a) and the 10 year period in cl 29(1)(b). Although the subject matter of each of (i) - (vi) might suggest that the latter view is preferable, I have decided not to express a view on these alternatives. This is because there is a possibility that the intention of the parties is best expressed by a third possibility: as if the word ‘or’ were to appear in cl 29(11)(a) so that the entitlement to pro-rata long service leave arises ‘if the employment ends before he/she has completed the first or further qualifying periods in accordance with’ cl 29(1). This possibility was not adverted to be either party and it is not appropriate for me to express a view in those circumstances. I note that this is the ‘usual’ effect of provisions creating an entitlement to pro-rata long service leave. I also note, in the case of at least one other industrial instrument made under the Industrial Relations Act 1979 (WA) there is a clause that is identical to cl 29 save for the addition of the word ‘or’ as I have indicated as a possible intention of the parties: see clauses 8(1) and 8(11) of Children’s Hospital Child Care Centre Association Inc. Enterprise Bargaining Agreement 2005 (AG 84 of 2005).

20      Public Transport Authority of Western Australia v Yoon [2017] WASCA 25 is distinguishable, on the facts, from this claim.  At issue in Yoon was the construction of section 4(3) the Long Service Leave Act 1958 (WA) (LSL Act) providing, in effect, that where a person is by virtue of an industrial agreement ‘entitled to long service leave at least equivalent to the entitlement to long service leave’ under the LSL Act, the person has no entitlement under the LSL Act. It was held that because the LSL Act required a prospective comparison of the rights of an employee under each of the LSL Act and the industrial agreement, it was not relevant that during a particular period (viewed retrospectively), an employee had an entitlement to pro-rata long service leave under the Act and no entitlement under the industrial agreement. The case is of no assistance to Mr Fedec in circumstances where, on any view, he has no entitlement under the LSL Act.

Overtime Claim

21      The relevant parts of cl 24 of the Industrial Agreement are as follows:

24. OVERTIME

(1) An employee authorised to work overtime will be paid overtime in accordance with this

Agreement provided that an employee may elect to accrue time off in lieu of payment

proportionate to the payment to which the employee is entitled. Such time off will be taken

at a mutually convenient time.

22      Under the heading, ‘Facts’ above I noted that Mr Fedec was not paid for 1830 minutes of overtime that he worked (i.e. $1,295.71) because he intended to take advantage of the ‘time off in lieu of payment’ conditions of his employment. I also noted that he did not request any of this ‘time off’ before his employment ended on 24 March 2014, but that by a letter posted on 30 March 2014 he made a demand for ‘monies outstanding for time off in lieu’.

23      In the language of cl 24 of the Industrial Agreement:

(a)   Mr Fedec made an ‘election to accrue time off in lieu of payment’. My view is that this election was made by Mr Fedec on each occasion (after the authorised overtime was worked) that he did not make a claim upon the respondent for an overtime payment.

(b)   Neither Mr Fedec nor the respondent had nominated a ‘mutually convenient time’ for the time off to be taken before his employment ended on 24 March 2014.

24      Mr Fedec submits that where it ‘becomes impossible for an employee to take time off at a mutually convenient time’ because the employment has ended, the right to be paid for working overtime reverts back to the employee (Claimants Outline of Submissions, [9] - [12]). The respondent submits that Mr Fedec’s claim fails because he did not ‘during his employment with the respondent request a reversal of his election of time off in lieu to be converted’ to an overtime payment (Respondents Outline of Submissions, [28]).

25      On the assumption, in favour of Mr Fedec, that he had the right while employed to unilaterally reverse his election to accrue time off in lieu and request paid overtime, it is necessary to determine the effect of the Industrial Agreement as a result of Mr Fedec:

(a)   having an accrued balance of ‘time off in lieu’ at the date of the end of his employment on 24 March 2014; and

(b)   on 30 March 2014 (i.e. after the end of his employment) purporting to reverse his election and request paid overtime.

26      There is nothing in the text of the Industrial Agreement, particularly clauses 24 (Overtime), 10 (Contract of Employment), 15 (Payment of Salary), 17 (Recovery of Underpayments), 33 (Cashing out Leave Entitlements) that expressly provides:

(a)   for the balance of an employee’s ‘time off in lieu’ to be converted to an overtime payment and paid upon termination;

(b)   that after the end of the contract of employment, an employee may reverse an election to accrue time off in lieu and elect to be paid overtime.

This stands in contrast to provisions of the Industrial Agreement expressly providing for payment of other forms of leave entitlements upon termination. For example, cl 29(9) provides for the payment of accrued long service leave upon the end of employment.

27      On the assumption, in favour of Mr Fedec, that it is open to the court find that an industrial agreement contains an implied term (as was done in United Voice WA [2013] WASCA 287 [89] Buss JA ff.; but see United Voice WA v The Minister for Health [2011] WAIRComm 1065 [68] - [69] (Cicchini IM)), Mr Fedec has not satisfied me as to satisfaction of the criteria for implication of a relevant term: See BP Refinery (Western Port) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1977) 180 CLR 266 [283]. In particular, an implied term for the balance of an employee’s ‘time off in lieu’ to be converted to an overtime payment and paid upon termination or for an employee to have the right, after the end of the contract of employment, to elect to be paid overtime are not terms that are necessary to ensure the effectiveness of the Industrial Agreement. Further, I am not satisfied that the terms proposed are ‘so obvious’ as to go ‘without saying’.

28      My conclusion that, in circumstances of this case, there is no relevant express term to support the Overtime claim and that no relevant term may be implied to support the Overtime claim is consistent with the result in: Dolly Holzinger v Midland Information, Debt and Legal Advice Service Inc [2004] WAIRC 11392; and Griggs v Noris Group of Companies [ 2006] SASC 23; (2006) 94 SASR 126. However, each of the cases are distinguishable on the facts. Each concerned an instrument that purported to limit the opportunity for a payment in place of accrued time in lieu employee.

Conclusion

29      In the result, the Pro-rata Long Service Leave claim and the Overtime claim have each failed. The claim will be dismissed.

M. FLYNN

INDUSTRIAL MAGISTRATE