WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2018 WAIRC 00809

DELIVERED : THURSDAY, 18 OCTOBER 2018

FILE NO. : M 109 OF 2017

CLAIMANT

AND

The Commissioner of Police

Respondent

CatchWords : Industrial Law (WA) - Construction of industrial agreement - Alleged contravention of clause of the Western Australia Police Industrial Agreement 2014 on non-work related medical and pharmaceutical expenses – Whether therapy delivered by a machine was the result of ‘service under a referral given by a Medical practitioner’ – Whether clause created ‘authority to pay’ or conferred a discretion upon employer – What constitutes contravention of an obligation upon an employer to exercise a discretion

Instrument : Western Australia Police Industrial Agreement 2014
Western Australia Police Industrial Agreement 2009

Legislation : Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 (WA)
Industrial Relations Act 1979 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Police Act 1892 (WA)
Interpretation Act 1984 (WA)
Fair Work Act 2009 (Cth)
Acts Interpretation Act 1901 (Cth)

Case(s) referred to
in reasons : Sammut v AVM Holdings Pty Ltd [No2] [2012] WASC 27

Fedec -v- The Minister for Corrective Services [2017] WAIRC 828

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 Excelior Pty Ltd [2013] FCA 638

Minister for Police v Western Australian Police Union of Workers (1995) 75 WAIG 1504

Pearce v Commissioner of Police [2018] WAIRC 679

Western Australian Police Union of Workers v Commissioner of Police (2003) WAIRC 7604

Silverbrook Research Pty Ltd v Lindley [2010] NSWCA 357

Toyota Motor Corporation Australia Limited v Marmara [2014] FCAFC 84

Vincent -v- Department of Finance [2016] WAIRComm 35
Burnie Port Corporation Pty Ltd v Maritime Union of Australia [2000] FCA 1768

Result : Judgment for the claimant; Commissioner required to re-consider employee claims for non-work related medical expenses

Representation:

Claimant : Mr A. Crocker as instructed by Tindall Gask Bentley Lawyers

Respondent : Mr J. Carroll and with him Mr F. Cardell-Oliver as instructed by the State Solicitor’s Office

REASONS FOR DECISION

Introduction

1          Brian McCormack (the claimant) is a member of the Western Australia Police Force. The terms and conditions of his employment are found in an industrial agreement, the Western Australia Police Industrial Agreement 2014 (the Agreement).1 Over the period August 2015 – October 2015, he received treatment for a medical condition and incurred expenses in connection with that treatment. Relevant to this case, the expenses included hospital charges following an overnight stay in hospital (Hospital Expense, $250) as well as the cost of hiring and subsequently purchasing of medical equipment (Machine Hire Expense, $250 and Machine Purchase Expense, $1,780). The expenses will be referred to, collectively, as ‘the Three Expenses’.

2          Clause 36 of the Agreement concerns ‘non work-related medical expenses’ and provides that the Commissioner of Police (the Commissioner) may reimburse the reasonable medical expenses of an employee where those expenses fall within categories proscribed by the clause.2 The claimant lodged claims for reimbursement of the Three Expenses (the Reimbursement Claims). The Commissioner refused the Reimbursement Claims. The claimant alleges that the refusal was a contravention of cl 36 of the Agreement. The case requires my determination of three issues.

3          First, the Commissioner contends that, on any view of the facts, the Three Expenses do not fall within the categories proscribed by cl 36 of the Agreement. Specifically, the Commissioner contends that the expenses are not, as mandated by cl 36(1)(b) of the Agreement, the result of ‘service’ or follow a ‘referral given by a medical practitioner’. For the reasons set out below under the heading, ‘Issue 1’, I reject the Commissioner’s contention, finding that it was open to the Commissioner to conclude that the Three Expenses fall within cl 36 of the Agreement.

4          Secondly, the claimant contends the Commissioner was required to grant the Reimbursement Claims. The clause was said to confer upon the Commissioner the ‘authority to reimburse’ expenses that fall within categories proscribed by the clause and it was said that, on any view of the facts, the Three Expenses fall within those categories. The Commissioner responds that, properly construed, cl 36 of the Agreement confers upon the Commissioner the discretion to grant or refuse a claim that falls within the categories proscribed by the clause. For the reasons set out below under the heading, ‘Issue 2’, I reject the claimant’s submission, concluding that the clause confers a discretion on the Commissioner.

5          Thirdly, it is necessary to determine whether, in refusing the Reimbursement Claims, the Commissioner has properly exercised the discretion conferred upon the Commissioner by cl 36 of the Agreement. For the reasons set out below under the heading, ‘Issue 3’, the claimant has satisfied me that the Commissioner has failed to exercise the discretion in the manner required by cl 36 of the Agreement, with the result that an order will be made for the Commissioner to re-consider the Reimbursement Claims.

6          These three issues are examined after setting out immediately below: observations on the jurisdiction, practice and procedure of this court; a summary of the Agreement including principles applicable to interpreting the Agreement; and facts relevant to the Commissioner’s refusal of the Reimbursement Claims.

The jurisdiction, practice and procedure of the Industrial Magistrates Court (IMC)

7          The IMC has the jurisdiction conferred by the Industrial Relations Act 1979 (WA)3 (IR Act) and other legislation. Sections 83 and 83A of the IR Act confer jurisdiction on the court to make orders for the enforcement of a provision of an industrial agreement where a person has contravened or failed to comply with the agreement. If the contravention or failure to comply is proved, the IMC may issue a caution or impose a penalty4 and make any other order, including an interim order, necessary for the purpose of preventing any further contravention.5 The IMC must order the payment of any unpaid entitlements due under an industrial agreement.6

8          The powers, practice and procedure of the IMC are the same as a case under the Magistrates Court (Civil Proceedings) Act 2004 (WA).7 The onus of proving a claim is on the claimant and the standard of proof required to discharge this onus is proof ‘on the balance of probabilities’. The IMC is not bound by the rules of evidence and may inform itself on any matter and in any manner as it thinks fit.8 In Sammut v AVM Holdings Pty Ltd [No2] [2012] WASC 27 [40] – [47], Commissioner Sleight examined a similarly worded provision regulating cases in the State Administrative Tribunal of Western Australia, noting:

[T]he rules of evidence are [not] to be ignored…. After all, they represent the attempt made, through many generations, to evolve a method of enquiry best calculated to prevent error and elicit truth. …

The more flexible procedure provided for does not justify decisions made without a basis in evidence having probative force.

The Agreement

9          This case involves construing the Agreement. The IR Act provides for the registration by the Commission of an agreement between an organisation of employees and any employer made with respect to any industrial matter.9 On registration, an industrial agreement binds employees (as indicated in the agreement) and employers who are a party to the agreement.10 The relevant principles to be applied when interpreting an industrial agreement were set out by the Full Bench of the Western Australian Industrial Relations Commission in Fedec -v- The Minister for Corrective Services [2017] WAIRC 00828 [21] – [23]. In summary (omitting citations), the Full Bench stated:

1. ‘The general principles that apply to the construction of contracts and other instruments also apply to the construction of an industrial agreement.’
2. ‘The primary duty of the court in construing an instrument is to endeavour to discover the intention of the parties as embodied in the words they have used in the instrument. It is the objectively ascertained intention of the parties, as it is expressed in the instrument, that matters; not the parties' subjective intentions. The meaning of the terms of an instrument is to be determined by what a reasonable person would have understood the terms to mean;’
3. ‘The objectively ascertained purpose and objective of the transaction that is the subject of a commercial instrument may be taken into account in construing that instrument. This may invite attention to the genesis of the transaction, its background and context. The apparent purpose or object of the relevant transaction can be inferred from the express and implied terms of the instrument, and from any admissible evidence of surrounding circumstances’;
4. ‘An instrument should be construed so as to avoid it making commercial nonsense or giving rise to commercial inconvenience. However, it must be borne in mind that business common sense may be a topic on which minds may differ’;
5. ‘An instrument should be construed as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed so as to have some operation’; and
6. ‘Industrial agreements are usually not drafted with careful attention to form by persons who are experienced in drafting documents that have legal effect.’

To the above list I would add:

7. 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).
8. 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 v Australian Municipal, Administrative, Clerical And Services Union [2006] FCA 813 [53] – [57] (French J); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638 [28] – [30] (Katzmann J).

10       The Agreement is primarily concerned with the salaries, hours of work, allowances, and leave entitlements of members of the Western Australia Police Force.11 Provision is also made for mechanisms to deal with change and dispute settlement.12 Part V of the Agreement concerns ‘Allowances’ and sets out the conditions for an employee entitlement to specified payment for particular purposes.13 Part VI of the Agreement concerns ‘Leave of Absence’ and, except for clauses 35 and 36, sets out the conditions for an employee entitlement to (paid or unpaid) leave for a particular purpose, e.g. annual leave, long service leave, bereavement leave, parental leave, illness or injury etc.14

11       Clauses 35 and 36 of the Agreement concern the entitlement of employees to have certain medical expenses paid by the Commissioner. These clauses are proximate to clauses 33 and 34 of the Agreement concerning, respectively, the entitlement to paid leave for illness or injury and the entitlement to carer’s leave on account of a sick family member. The relevant text of clauses 33, 34, 35 and 36 of the Agreement is set out in full in an endnote to these reasons.15

12       Clause 35 of the Agreement states that, subject to exceptions, the Commissioner ‘shall pay the reasonable medical, dental, medical aides, hospital and travelling expenses incurred by an employee as a result of illness or injury’ (emphasis added) during employment (the Work-Related Medical Expenses Benefit). The claimant and the Commissioner are in agreement that cl 35 of the Agreement is to be construed with the result that reasonable medical, dental, etc. expenses incurred by an employee as a result of illness or injury during employment must be paid by the Commissioner.

13       The effect of cl 36 of the Agreement is threefold. First, subject to exclusions found in cl 33(7)(b) and cl 36(3) of the Agreement (the Exclusions) and lodging a claim that complies with cl 36(4) (the Claim Form Requirements), the Commissioner ‘may pay the reasonable medical illness or injury related expenses ... of an employee who receive[d] any consultation, treatment or other service by a medical practitioner’ (the Non-Work Medical Practitioner Expenses Benefit).

14       Secondly, subject to the Exclusions and to the Claim Form Requirements, the Commissioner may pay the reasonable medical illness or injury related expenses of an employee who received any x-ray or other service provided by a third party under a referral given by a medical practitioner (the Non-Work Third Party Expenses Benefit).

15       Thirdly, subject to the Claim Form Requirements, an employee is entitled to be paid the costs of medicine supplied by a pharmacist on the prescription of a medical practitioner (the Pharmacist Expenses Benefit).

16       The entitlement to the Non-Work Third Party Expenses Benefit is at issue in this case and gives rise to the three issues identified in the introduction to these reasons. The claimant and the Commissioner are in agreement that, upon an employee satisfying the Claim Form Requirements, the Pharmacist Expenses Benefit must be paid by the Commissioner. I agree. Clause 36(2) of the Agreement provides that, subject to the Claim Form Requirements, an employee ‘is entitled to’ the benefit. The ordinary meaning of the word ‘entitle’ is to ‘give a person a right to something’.16 The word ‘entitled’ in a legal instrument suggests a person has been given a legal right. A legal right (usually) attracts a correlative legal duty.17 This result is consistent with reasoning of the majority of the Industrial Appeal Court in The Minister for Police & Anor v Western Australian Police Union of Workers (1995) 75 WAIG 1504 (discussed below).

Facts

17       On 3 May 2016, the Commissioner’s Director of Human Resources wrote to the claimant confirming the refusal of the Reimbursement Claims. This was said to be after a ‘review [of] the information compiled at the earlier stages’ and after undertaking ‘any further investigations deemed necessary’. For the purposes of resolving the three issues identified in the introduction to these reasons it is helpful to compile a chronology by drawing upon the contents of documents supplied by the claimant to the Commissioner before 3 May 2016.

5 January 2015

18       On this day, Dr Peter Bairstow, a General Practitioner, wrote to Dr Michael Prichard, a respiratory and sleep physician, stating that the claimant’s family had suggested ‘obstructive sleep apnoea as an issue’ and requesting a review and consideration of management of the claimant as appropriate. Dr Prichard’s premises were identified as the ‘Mount Respiratory/Perth Sleep Clinic’ at Suite 27, 146 Mounts Bay Road, Perth.

5 August 2015

19       Dr Prichard records that the claimant ‘attended the Mount Hospital to complete an overnight sleep study’ on this date.18 The claimant states that the overnight sleep study was ‘at the Mount Hospital under the supervision of Dr Michael Prichard’.19 A receipt of this date issued by an entity described as, variously, ‘The Mount Private Hospital’ and ‘Healthscope Operations Pty Ltd’ records $250 as ‘inpatient deposits’ received from the claimant. A document entitled ‘Informed Financial Consent’ and issued by an entity identified as ‘Healthscope’ contains reference to: ‘AD:05/08/15 Mount’; Dr M Prichard; ‘fund excess patient cost (per day) of $250. The Reimbursement Claim relating to the Hospital Expense records a ‘hospital stay – Mount Hospital’ on this day and a ‘gap balance’ of $250.20

6 August 2015

20       Dr Prichard records that the claimant was diagnosed with ‘obstructive sleep apnoea and prescribed nasal CPAP therapy’ on this date.21 (CPAP is an acronym for ‘continuous positive airway pressure’). Dr Prichard’s fee of $379.35 for an ‘initial assessment’ on this date was paid by the claimant and reimbursed to the claimant, as to $224.35 by Medicare Australia and as to $155 by the Commissioner.

21       The claimant records that he commenced a trial of ‘CPAP therapy’ involving ‘a CPAP machine’ on this date that this continued until an overnight sleep study on 15 September 2015.22 A tax invoice/receipt on 6 August 2015 records $250 for an ‘Initial CPAP trial – 1 month rental’ received by the claimant. The receipt identifies various entities: ‘ResSleep Perth (of) suite 27/146 Mounts Bay Road’; and ‘Goldrange Nominees Pty Ltd ATF The CPAP Services Trust’. The Reimbursement Claim relating to the Machine Hire Expense records ‘CPAP treatment – Initial hire assess’ of $250.23

15 – 16 September 2015

22       An overnight sleep study takes place. Dr Prichard considers CPAP therapy ‘to be beneficial’ and recommends that the claimant purchase ‘his own CPAP pump to manage CPAP therapy in the long term’.24 Dr Prichard’s fee of $187.30 for this ‘follow up consultation’ was paid by the claimant and reimbursed to the claimant, as to $112.30 by Medicare Australia and as to $75 by the Commissioner.

8 October 2015

23       On this day, upon the advice of Dr Prichard, the claimant purchased a CPAP machine. A tax invoice/receipt on 8 October 2015 records $2,500 for ‘AirSense 10 with built-in wireless connectivity, HumidAir and ClimateLineAir’ received by the claimant. The receipt is in the same terms as the one noted to have issued on 6 August 2015 for ‘1 month rental’. A health insurance claim resulted in a benefit of $720 for ‘an appliance’ being paid to the claimant.25 The Reimbursement Claim relating to the Machine Purchase Expense records ‘Purchase of CPAP Machine as directed by Dr Prichard’ of $1,780.

3 May 2016

24       On this day, the Commissioner’s Director of Human Resources wrote to the claimant in response to a grievance procedure invoked by the claimant in connection with the Commissioner’s refusal of the Reimbursement Claims relating to the Hospital Expense and the Machine Hire Expense:

[T]he approval or not of this claim rests on whether the Commissioner of Police has used his discretion appropriately when determining whether he may or may not pay this claim.

This discretion must allow the Commissioner to limit which expenses are reasonably deemed payable in such circumstances. Having looked at the evidence before me, the industrial provisions and historical application of the Commissioner’s discretion in such matters I have determined that the rejection of your claim … is consistent with all previous applications and is made in line with the Commissioner’s discretion which has not, in my view, been capricious, arbitrary or unreasonable.’

I also note that the Executive Director confirmed Western Australia Police’s position in relation to the hiring of short-term diagnostic equipment in a letter to the Union dated 27 November 2015 in which it is stated: …the short term hire of diagnostic equipment such as ‘holter-monitoring’ will be considered for reimbursement on a case by case basis.

As the Commissioner has used his discretion appropriately and consistently, the decision made to deny your two non work-related claims … will be upheld…

Issue 1: Meaning of ‘Referral’ and ‘Service’

25       The Commissioner contends that, on any view, the Three Expenses do not fall within the description of Non-Work Third Party Expenses Benefits in cl 36(1) of the Agreement because those expenses do not follow a ‘referral’ by Dr Prichard and are not referable to a ‘service’.

26       Observing that a Non-Work Third Party Expenses Benefit is an expense ‘provided under a referral given by a medical practitioner’, the Commissioner submits that the material in support of the Three Expenses was incapable of sustaining a conclusion that the expense was the result of a referral given by Dr Prichard. The argument is in the form of a syllogism (underlined):

1. A ‘referral’ for the purposes of the cl 36(1)(b) of the Agreement requires a direction from Dr Prichard to the claimant to attend upon a third party. A ‘referral’ was distinguished from a (mere) ‘recommendation’. This interpretation was supported by reference to dictionary definitions of ‘referral’ and the text of cl 36(5)(a)(iv) of the Agreement. Reference was also made to the absurd consequences of an interpretation that may result in an employee making a valid claim for the expense of a holiday or a particular food when acting upon the recommendation of a medical practitioner to ‘take a holiday’ or to ’go on a diet’.
2. The evidence before the Commissioner was Dr Prichard confirmed the attendance of the claimant upon a third party, the Mount Hospital.
3. Evidence of attendance upon a third party is incapable of sustaining a finding that Dr Prichard directed the claimant to attend upon the Mount Hospital.

27       My view is that proposition a. in the previous paragraph is incorrect. The ordinary meaning of a ‘referral’ in a medical context is the introduction of a patient by one medical practitioner to another medical practitioner for treatment. This meaning is confirmed by the dictionary definitions quoted by counsel for the Commissioner.26 The means of the introduction (formal or informal) and the language of the introduction (a direction or a recommendation) are insignificant features of a ‘referral’ compared to its purpose. The purpose of a referral is for treatment that is not available from the referring medical practitioner.

28       Clause 36 of the Agreement confirms that the Non-Work Third Party Expenses Benefit is for treatment by a medical practitioner and any other service ‘not provided by a medical practitioner but under a referral’. Any communication by Dr Prichard to the claimant for the purpose of treatment of a medical illness or injury, and resulting in the claimant receiving ‘an X-ray or other service’ is capable of being a ‘referral’. The risk of absurd consequences is overstated insofar it is only the ‘reasonable medical illness or injury related expenses’ that are payable. It would be incorrect of the Commissioner to construe cl 36(1) of the Agreement such that it was not open to find that the Reimbursement Claims related to expenses under a referral by Dr Prichard.

29       Observing that a Non-Work Third Party Expenses Benefit is payable to an employee who receives ‘any X-ray or other service’, the Commissioner submits that, on any view of the facts, the claims for the Machine Hire Expense and the Machine Purchase Expense did not relate to a service. A comparison is invited between cl 35 of the Agreement on Work Related Medical and Hospital Expenses benefit which contains a specific reference to the employer paying for ‘medical aides’ on a work related claim and the text of cl 36 of the Agreement which omits reference to ‘medial aides’. The comparison is of limited utility to the extent that the user of a ‘medical aide’ may also be said to receive a ‘service’.

30       It is also said that the claimant's legal rights in relation to the CPAP machine are properly characterised as the temporary (or permanent) ‘right to the possession and enjoyment of goods' and this characterisation precludes a finding that the claimant received a service when using the equipment. Again, the submission falters to the extent that the claimant's (admitted) right to possess and enjoy the CPAP machine is not inconsistent with the claimant simultaneously receiving a ‘service’.

31       The Commissioner's submissions assume that ‘service’ in cl 36(1)(b) of the Agreement has a particular technical meaning. I see no warrant for that conclusion. The word ‘service’ appears in the context of a phrase, ‘X-ray or other service’. An x-ray involves the use of a machine. The Macquarie Dictionary defines ‘service’ to include ‘an act of helpful activity’, ‘the supplying of articles, commodities, activities etc. required or demanded’, ‘the performance of any work for another’.27

32       The Claim Form Requirements in cl 36(5)(a)(iv) of the Agreement are stated to include 'documentary evidence that the health service' was provided under a referral given by a medical practitioner. Clause 36 of the Agreement does not qualify the means by which the ‘service’ or the ‘health service’ is to be delivered to an employee other than to state that it must be delivered ‘under a referral’ by a medical practitioner. It would be incorrect of the Commissioner to construe cl 36(1) of the Agreement such that it was not open to find that the Machine Hire Expense and the Machine Purchase claims related to an ‘X-ray or other service’.

Issue 2: Does cl 36(1) of the Agreement Create an Authority to Pay Medical Expenses or confer a discretion whether to pay medical expenses?

33       Clause 36(1) of the Agreement provides that, upon the Claim Form Requirements being satisfied and none of the Exclusions arising, the Commissioner ‘may’ pay the reasonable expenses within the categories proscribed by the clause. The ordinary meaning of the word ‘may’ is denote a possible outcome.28 The ordinary meaning of a word is to be preferred absent indications that (objectively) the parties intended a different meaning. The claimant submits that ‘the word ‘may’ confers authority to exercise the power to make the payment’ in the absence of an ‘expressly stated’ creation of a discretion.29

34       It is said that the Claim Form Requirements and the Exclusions are ‘gateways’ intended to exclude unmeritorious claims and that the Commissioner must pay on claims that fall within the categories proscribed by the clause.30 My view is that the characterisation of the Claim Form Requirements and the Exclusions as ‘gateways to payment of the claim by the Commissioner’ is unhelpfully pejorative; those pre-conditions to payment could also be characterised as ‘gateways to exercise of a discretion by the Commissioner’.

35       The claimant correctly submits that other clauses of the Agreement adopt phrases such as ‘absolute discretion’ or ‘may exercise discretion’ or ‘sole discretion’ to confer upon the Commissioner the power to make discretionary decisions concerning salaries, hours of duty, allowances and bereavement leave.31 Indeed, in Pearce v Mr. Christopher Dawson, Commissioner of Police, Western Australia Police [2018] WAIRC 00679 [45] (Scaddan IM), this court confirmed that the effect of cl 17(12)(c) of the Western Australia Police Industrial Agreement 2009 was to confer a discretion upon the Commissioner with respect to certain allowances.

36       The claimant also notes that other clauses of the Agreement provide a payment or indulgence to an employee which is subject to the Commissioner’s approval.32 My view is that it is not necessary for the Agreement to use a particular word or expression to create a discretion. The claimant’s submission also overlooks the use of the permissive word ‘may’ in cl 36(1) of the Agreement in contrast to the use of the unpermissive words ‘entitled’ in cl 36(2) of the Agreement (in connection with the Pharmacist’s Expenses Benefit) and ‘shall’ in cl 35 of the Agreement (in connection with a Work-Related Medical Expenses Benefit).

37       The different auxiliary verbs (‘may’, ‘entitled’, ‘shall’) used in close proximity to each other in connection with similar but different subject matter is an objective indication of a different meaning being attributed to the permissive (‘may’) and unpermissive (‘entitled’, ‘shall’) auxiliary verbs. The variety of expressions used throughout an agreement (‘absolute discretion’, ‘discretion’, ‘may’, ‘shall’, ‘entitled’ etc.) is no reason to displace the ordinary meaning of a word (‘may’) that results in coherence in the treatment of similar subject matter (clauses 35 and 36 of the Agreement).

38       The claimant submits that there are ‘sound policy reasons why members of the police force should not be discouraged’ from seeking appropriate medical care for non-work related matters.33 It is incontestable that members of the police force ‘should not be discouraged from seeking appropriate medical care’. However (as discussed below under the heading, ‘Issue 3’), cl 36(1) of the Agreement casts an obligation upon the Commissioner to exercise the discretion on whether to pay the Non-Work Third Party Expenses Benefit honestly and conformably with the purposes of the Agreement. Of obvious relevance to the exercise of the discretion in each case will be any evidence of the significance of the claimed expense to the police work of the employee. The result of the exercise of the discretion may (or may not) lead to employee disappointment. However, the result is not ‘a nonsense’ and there is no evidence of resulting ‘practical inconvenience’.

39       The existence of a discretion is consistent with the purpose and objective of the Agreement, evident from clauses 33 – 36. Those clauses create an entitlement, subject to conditions, to distinct classes of benefits following illness or injury: employee leave (cl 33); carer’s leave (cl 34); the Work-Related Medical and Hospitals Expenses Benefit (cl 35); Non-Work Related Medical Practitioner Expenses Benefit (cl 36(1)(a)); Non-Work Third Party Expenses Benefit (cl 36(1)(b)); and Pharmacist Expenses Benefit (cl 36(2)). I have already noted that some of those benefits must be paid when relevant conditions are satisfied: Work-Related Medical Expenses Benefit and the Pharmacist Expenses Benefit.

40       In contrast, the entitlement to paid leave by reason of illness or injury in cl 33 of the Agreement is subject to the discretion of the Commissioner: Western Australian Police Union of Workers v Commissioner of Police [2003] WAIRC 7604 [29] - [31] ff (Scott C). It may be inferred that the purpose and object of the Agreement was to reserve to the Commissioner in some but not all classes of illness or injury benefits a discretion on whether the benefit will be paid. In that context, it is unremarkable that the entitlement to the Non-Work Third Party Expenses Benefit found in cl 36(1) of the Agreement is a discretionary decision.

41       At issue before the Industrial Appeal Court in The Minister for Police & Anor v Western Australian Police Union of Workers was whether a dispute concerning a decision by the Commissioner pursuant to regulations made under the (now repealed) Police Act 1892 (WA) gave rise to an ‘industrial matter’.34 The regulations were, relevantly, in identical terms to cl 35, cl 36(1) and cl 36(2) of the Agreement. A dispute arose after the Commissioner decided, for budgetary reasons, to suspend payment of non-work related medical expenses. The whole court concluded that the dispute concerned an ‘industrial matter’. Franklyn J (with whom Rowland J agreed) offered the following view on the effect of the regulations (at 1508):

[T]he Commissioner thereby conferred upon the members and cadets an entitlement to apply for reimbursement, reserving to himself, in the case of medical treatment identified in reg 1307(1) (i.e. clause 36(1) of the Agreement), a discretion as to whether or not he would, in any particular case, reimburse but, in the case of pharmaceutical expenses identified in reg 1307(2) (i.e. clause 36(2) of the Agreement), conferring an entitlement to reimbursement.

It is apparent that the reasoning of Franklyn J (with whom Rowland J agreed) is consistent with my preferred construction of the clauses of the Agreement concerning the Non-Work Third Party Benefit. The significance of the consistency should not be overstated. The decision in The Minister for Police & Anor v Western Australian Police Union of Workers was on a different issue (characterisation of a dispute as an ‘industrial matter’) and concerned a different instrument (regulations) in a different legal context. Kennedy J appeared to take a different view on the effect of the regulations as ‘not in terms conferring any discretion on the Commissioner’ (at 1504, my emphasis). However, Kennedy J concluded that, ‘in any event’, the dispute concerned the compensation of employees and was an ‘industrial matter’.

42       Section 56(1) of the Interpretation Act 1984 (WA) provides that in a ‘written law’ the word ‘may’ ‘shall be interpreted to imply that the power so conferred may be exercised or not, at discretion’. A ‘written law’ is defined to include any instrument made under any Act ‘and having legislative effect’. I note that an enterprise agreement made under the Fair Work Act 2009 (Cth) is not subject to the ‘rules’ of construction in the Acts Interpretation Act 1901 (Cth): Toyota Motor Corporation Australia Limited v Marmara [2014] FCAFC 84 [58]. Neither party addressed me on whether the Agreement is a ‘written law’ with the consequence that s 56(1) of the Interpretation Act 1984 (WA) has application to the Agreement. It has not been necessary to consider the issue in reaching my conclusion above.

Issue 3: Has the Commissioner exercised the discretion conferred by cl 36 of the Agreement?

43       In Silverbrook Research Pty Ltd v Lindley [2010] NSWCA 357 [5] – [6] Allsop P (Beazley JA agreeing) stated the effect of a contractual term conferring a discretion upon an employer on whether to pay a performance bonus to an employee where the employee met objectives that were to be set in accordance with a process proscribed by the contract:

[5]... That the decision as to whether the respondent [employee] should receive the bonus was “entirely within the discretion of” the appellant [employer] should not be construed so as to permit the appellant to withhold the bonus capriciously or arbitrarily or unreasonably; it should not be construed so as to give the appellant a free choice as to whether to perform or not a contractual obligation. The relevant discretion should be understood against the proper scope and content of the contract. This was a bargained for bonus to be assessed against set objectives. Such a clause should receive a reasonable construction and not permit the appellant to choose arbitrarily or capriciously or unreasonably that it need not pay money the set objectives having been satisfied...

[6] The discretion is to be exercised honestly and conformably with the purposes of the contract. There may be many circumstances in which it would be legitimate, and conformable with the purposes of the contract, not to pay the bonus. There may be financial stringency or misbehaviour by the respondent or some other consideration. It is unnecessary to explore the possibilities in detail. What, however, would not be permitted is an unreasoned, unreasonable, arbitrary refusal to pay anything, come what may. This would be a denial of the very clause that had been agreed. If these parties wished to make payment under the clause entirely gratuitous and voluntary such that payment could be withheld capriciously, notwithstanding the compliance with solemnly set objectives they needed to say so clearly.

44       Similar observations have been made on the effect of a term of an industrial agreement registered under the IR Act that confers a discretion upon the employer: Pearce [111] ('nothing manifestly unreasonable in the [employer's] assessment and determination of the [employee's] eligibility for payment of [an allowance]'); Vincent v Department of Finance [2016] WAIRC 00035 [93] – [106] ('Was the Decision Made Capricious, Arbitrary, or Unreasonable?’).

45       I have noted that the effect of cl 36 of the Agreement is that, subject to the Exclusions and to the Claim Form Requirements, the Commissioner ‘may pay the reasonable medical illness or injury related expenses of an employee who received any x-ray or other service provided by a third party under a referral given by a medical practitioner.’

46       It follows that the Commissioner was entitled to refuse a claim for a Non-Work Third Party Expenses Benefit made by the claimant upon making a finding that: (1) one of the Exclusions applied; (2) the Claim Form Requirements had not been satisfied; (3) the claim did not concern ‘medical illness or injury related expenses’; (4) the claim concerned medical or injury related expenses that were not reasonable; (5) the claim did not concern expenses of ‘any X-ray or other service’; (6) the claim concerned expenses of any x-ray or other service that were not provided ‘by a third party under a referral given by a medical practitioner’; or (7) after due consideration, the discretion to pay the claimed expenses should not be exercised.

47       The claimant will not succeed on his allegation of a contravention of cl 36(1) of the Agreement unless he proves that, in reaching one (or more) of those seven findings, the Commissioner was: dishonest, capricious, arbitrary, unreasoned, manifestly unreasonably, or not acting in conformity with the purposes of the Agreement. It is necessary to examine the stated findings of the Commissioner in response to the claims for the Three Expenses.

48       The claim for the Hospital Expense was accompanied by a receipt from the Mount Private Hospital in the amount of $250 for ‘inpatient deposits’. The initial response of the Commissioner is evident from an email on behalf of the Commissioner of 8 January 2016, stating that ‘we would need [the claimant] to produce something from the provider establishing what the $250.00 was allocated to, consistent with’ cl 36 of the Agreement, because inpatient deposits for hospital admissions are not covered under non-work related expenses.

49       The claimant supplied the Commissioner with a letter from Dr Prichard of 13 January 2016 confirming that the claimant attended the Mount Hospital to complete an overnight sleep study. The response of the Commissioner, in an email dated 19 January 2016 stated that, simply confirming Mr McCormack’s attendance at hospital is not details of a medical expense. The Commissioner’s final position is evident from the Human Resources Director letter of 3 May 2016 stating that, ‘rejection of the claim is consistent with all previous applications and is made in line with the Commissioner’s discretion which has not, in [her] view, been capricious, arbitrary, or unreasonable’.

50       The findings of the Commissioner in response to the claim for the Hospital Expense are difficult to discern from the communications on behalf of the Commissioner. The Commissioner’s letter of 8 January 2016 is not clear as whether the claimed expenses were found not to be ‘medical expenses’ or were found not to be expenses of an ‘X-ray or other service’ or whether the claim was not paid for some other reason e.g. the letter may also be interpreted to suggest that the Claim Form Requirements had not been satisfied (insofar as cl 36(5)(a)(iv) of the Agreement requires a claimant to supply documentary evidence that the health service was provided under a referral given by a medical practitioner).

51       The Commissioner’s letter of 13 January 2016 suggests an acceptance that the claim was for expenses associated with an attendance at the Mount Hospital on 5 August 2015. However, it is not clear whether the claim was refused because of a finding that those expenses were not ‘medical expenses’ or because those expenses were not for an ‘X-ray or other service’ or whether the claim was not paid for some other reason. The Commissioner’s letter of 3 May 2016 did nothing to clarify the findings of the Commissioner other than to assert the proper exercise of the discretion not to grant the claim.

52       The claimant was left in a position of uncertainty as to the findings of the Commissioner which resulted in his claim for Hospital Expenses being refused. The claimant was not in a position to know whether the Commissioner had made a finding that the expenses were not ‘medical expenses’ or that he had made a finding that the expenses did not concern a ‘service’ or whether, after due consideration, the Commissioner had exercised the discretion to refuse the claim.

53       The Commissioner’s failure to communicate to the claimant the finding (or findings) that resulted in the claim being refused was a significant omission. The extract from Silverbrook Research Pty Ltd makes clear that a contractual obligation to exercise a discretion has consequences for an employer. The claimant has satisfied me that, in failing to make findings that enabled the claimant to satisfy himself that cl 36(1) of the Agreement had been correctly applied his claim for the Hospital Expense, the Commissioner had not acted in conformity with the purposes of the Agreement and, accordingly, has contravened the clause.

54       It was suggested by the Commissioner that if the claim for Hospital Expenses was for hospital accommodation, it could not be a claim for an ‘X-ray or other service’ because a temporary right to occupy a hospital bed was not a ‘service’. It is not clear from the Commissioner’s communications to the claimant that the Commissioner took the view that ‘accommodation’ was not a ‘service’. When discussing the meaning of ‘service’ in the context of the expenses of a CPAP machine (above under the heading, ‘Issue 1’), I concluded that the word ‘service’ did not have a technical legal meaning. My view is that expenses of ‘accommodation’ are capable of being expenses of a ‘service’ within the ordinary meaning of the word ‘service’.

55       The response of the Commissioner to the claim for the Machine Hire Expense and the Machine Purchase Expense is evident from communications of 27 October 2015, 8 January 2016, 19 January 2016 and 3 May 2016. The memorandum of 27 October 2015 states:

… [E]ven though your doctor directed you to obtain or purchase the machine, he is not performing the function or the service, the equipment is undertaking the treatment service.

Therefore, as there is no extension under section (sic) 36 for the reimbursement of equipment items, such (sic) sleep apnoea machines, we are not in a position to reimburse you for the purchasing of the CPAP machine.

56       Again, when discussing the meaning of ‘service’ in the context of the expenses of a CPAP machine (above under the heading, ‘Issue 1’), I concluded that it would be incorrect of the Commissioner to construe cl 36(1) of the Agreement such that it was not open to find that the Machine Hire Expense and the Machine Purchase claims related to an ‘X-ray or other service’. It is apparent that the quoted finding has been made on the basis of an erroneous legal interpretation of cl 36(1) of the Agreement.

57       I have considered whether, because of the contents of the letter of 3 May 2016, the inference may be drawn that the Commissioner has nevertheless lawfully exercised a discretion to refuse the claims. My view is that the references in the letter to reviewing the previous applications of the Commissioner’s discretion does not satisfactorily address the possibility that any exercise of the discretion was based upon an erroneous legal interpretation of the word ‘service’; the Commissioner had not acted in conformity with the purposes of the Agreement and, accordingly, has contravened the clause.

58       Clause 36 of the Agreement casts an obligation on the Commissioner to make findings and, ultimately, to exercise a discretion with respect to a payment to an employee. There is no warrant in the text of the clause or in the IR Act for the court to assume those obligations or to exercise the discretion.

59       My view is that, as a result of my findings, it is appropriate to make an order pursuant to s 83(5) of the IR Act to the effect that the Commissioner be required to re-consider the Reimbursement Claims in light of these reasons. I will hear from the parties on the precise for of orders. I will also hear from the parties on the making of any orders with respect to a penalty as provided by s 83(4) of the IR Act.

M. FLYNN

INDUSTRIAL MAGISTRATE

1 Under the Agreement, the claimant is 'an Employee' and the Commissioner of Police is the 'Employer'.

2 The claimant does not allege that his medical condition is related to his employment.

3 Section 81A of the IR Act 1979 (WA) states, ‘An industrial magistrate’s court has the jurisdiction conferred on it by sections 77, 80(1) and (2), 83, 83A, 83B, 83D, 83E, 96J, 97V(3), 97VJ(3), 97YC, 97YG, 110, 111 and 112.’

4 Section 83(4)(a) IR Act 1979 (WA).

5 Section 83(5) IR Act 1979 (WA).

6 Section 83A(1) IR Act 1979 (WA).

7 Section 81CA(2) IR Act 1979 (WA).

8 Reg 35(4) Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 (WA).

9 Section 41 IR Act 1979 (WA).

10 Section 41(4) IR Act 1979 (WA).

11 Parts III, IV, V and VI respectively of the Agreement.

12 Part II of the Agreement.

13 On Call allowances (cl 15); Shift allowance (cl 16) ; Additional allowances (cl 17); District allowances (cl 19); Motor Vehicle allowances (cl 20); Property allowance (cl 21); Higher duties allowance (cl 22); Camping allowances (cl 23); Disturbance allowance (cl 24); Relieving allowance (cl 25); Transfer and Removal allowances (cl 26); Travelling allowances (cl 27); Conditions to Apply at Multi-Functional Policing Facilities (MFPFs) (cl 28).

14 Annual Leave; Long Service Leave; Bereavement Leave; Parental Leave; Entitlement to Leave and Allowances through Illness or Injury; Carer’s Leave; Work Related Medical and Hospital Expenses; Non Work-Related Medical and Pharmaceutical Expenses; Retirement, Removal or Death of an Employee; Cultural/Ceremonial Leave; Purchased Leave - 42/52 Leave Arrangement; Purchased Leave - Deferred Salary Scheme; Leave Without Pay; Blood/Plasma Donors Leave; Union Communication with Members and Facilities for Union Representatives; Leave to Attend Union Business; Trade Union Training Leave; Leave for International Sporting Events; Leave for Training with Defence Force Reserves.

15

33.  ENTITLEMENT TO LEAVE AND ALLOWANCES THROUGH ILLNESS OR INJURY

(1)           An employee who becomes incapacitated shall as soon as possible:

(a)           notify the employee's Officer in Charge of that fact and of the his or her whereabouts; and

(b)           notify the Manager of the nature of the illness or the nature and cause of the injury, as the case may be.

(2)           Except in respect of a day on which an employee becomes incapacitated while on duty and for the first 5 single day absences in a calendar year, an application for leave by an employee on account of incapacity shall be supported by a certificate of a medical practitioner or, where the incapacity involves a dental condition, by a certificate of a dentist. Save that where the employee is stationed in a remote or rural locality and there is no medical practitioner within that locality, a certificate from an attending registered nurse or certification of the incapacity by the employee’s Officer in Charge shall suffice. Where the Employer has good reason to believe that the absence may not be legitimate, the Employer may request that evidence be provided. Should an employee become incapacitated while on duty, an application for leave on account of that incapacity does not require a supporting certificate.

(3)           The application shall be:

(a)           in a form approved by the Employer; and

(b)           submitted to the Manager, and the certificate in its support shall be -

(c)            submitted to the employee’s Officer in Charge.

(4)           Subject to subclause (2) of this clause, and the compliance of the employee with subclause (3) (a), (b) and (c) of this clause, the Employer may grant to an employee in respect of the employee's incapacity leave of absence with pay:

(a)           for up to one hundred and sixty eight days in a calendar year; and

(b)           if so recommended by the Manager and subject to any terms or conditions recommended by the Manager, for a further period.

(5)           Except where an employee is incapacitated through the employee's fault or misconduct, an employee is entitled to receive in respect of a period of leave or absence approved under subclause (4) of this clause and subject to any terms and conditions imposed under subclause (4) (b) of this clause, any special allowances which the employee would have received under the Agreement if the employee had not been incapacitated.

(6)           The district allowance prescribed by District Allowance (Government Officers) General Agreement 2010 or any subsequent replacement agreement ceases to be payable:

(a)           after an incapacitated employee and the family of that employee have been absent from the employee's region for a continuous period exceeding six weeks; and

(b)           for so long thereafter as that absence continues.

(7) (a) An employee who suffers illness or injury through the employee's fault or misconduct is not entitled to paid leave contained within the provisions of subclause (4) (a) and (b) of this clause, in respect of absence from duty resulting from that illness or injury.

(b)           An employee who suffers illness or injury through the employee's fault or misconduct is not entitled in respect of that illness or injury to receive the benefits contained under clause 35 - Work Related Medical and Hospital Expenses or clause 36. – Non Work-Related Medical and Pharmaceutical Expenses of this Agreement.

(c)            Where the incapacity of an employee results from the carrying on by the employee of an occupation for which the employee received or expected to receive remuneration, outside of the employee's duties as an employee the Employer may grant or refuse to grant paid leave to the employee in respect of the incapacity or may grant the employee leave at a reduced rate of pay.

(8)           An incapacitated employee shall not during the employee's absence from duty engage for reward in any other occupation or activity.

(9)           An employee who has been absent from duty because of incapacity for longer than four weeks shall, before returning to duty, submit to the Manager evidence of the employee's medical fitness to return to duty.

(10) (a) The Employer may direct an employee to submit to examination, at the expense of the Employer, by one or more medical practitioners nominated in each instance by the Employer and the employee shall obey such a direction.

(b)           Where an employee has been examined under subclause 10 (a) of this clause, and the examining medical practitioner expresses the opinion in writing to the Employer that the employee is unfit for duty because of illness or injury, the Employer may direct the employee, to apply for leave on that ground and the employee shall obey such a direction.

(11)       An employee who is required to travel to Perth or a location other than his or her locality for medical treatment arising from a work related illness or injury is entitled to travel allowances in accordance with Clause 27. – Travelling Allowances.

34.   CARER’S LEAVE

(1)           Employees are entitled to up to 40 hours per calendar year carer's leave to care for a sick family member.

(2)           Where employees have exhausted the entitlements provided under subclause (1) of this clause they are able to access up to an additional 40 hours of their illness and injury leave entitlements as prescribed under clause 33 of this Agreement, per calendar year to care for a sick family member.

(3)           For the purposes of this clause a “sick family member” means

(a)           the partner of the employee;

(b)           the child, step child or grandchild of the employee (including an adult child, step child or grandchild);

(c)            the parent, step parent, or grandparent whether they live with the employee or not;

(d)           the sibling of an employee; or

(e)            any other person who, at or immediately before the relevant time for assessing the employee’s eligibility to take carer’s leave, lived with the employee as a member of the employee’s household.

(4)           An employee who claims to be entitled to carer’s leave is to provide the Employer with evidence that would satisfy a reasonable person of the entitlement.

(5)           Carer’s Leave is not cumulative from year to year.

35.  WORK RELATED MEDICAL AND HOSPITAL EXPENSES

Subject to the provisions contained within subclause (7) (b) of Clause 33. - Entitlement to Leave and Allowances Through Illness or Injury of this Agreement, the Employer shall pay the reasonable medical, dental, medical aides, hospital and travelling expenses incurred by an employee as a result of illness or injury arising out of or in the course of the employee's duties or suffered by the employee in the course of travel to or from a place of duty.

36.  NON WORK-RELATED MEDICAL AND PHARMACEUTICAL EXPENSES

Medical and Pharmaceutical Expenses

(1)           Subject to the provisions contained within subclause (7) (b) of Clause 33. - Entitlement to Leave and Allowances through Illness or Injury of this Agreement, the Employer may pay the reasonable medical illness or injury related expenses (less the amount of any Medicare benefits and private health insurance or other benefit fund, paid or payable) of an employee who receives:

(a)           any consultation, treatment or other service by a medical practitioner; or

(b) any X-ray or other service not provided by a medical practitioner but provided under a referral given by a medical practitioner.

(2)           An employee is entitled to reimbursement by the Employer of the cost of a medicine supplied by a pharmacist on the prescription of a medical practitioner if the medicine was at the time of issue of the prescription specified in the Schedule of Pharmaceutical Benefits.

Exclusions

(3)           Without affecting by implication the meaning of "medical illness or injury related expenses" in subclause (1), above, the Employer shall not be liable for any medical or pharmaceutical expenses referred to in subclause (1) and (2), above, associated with the following:

(a)                      All Dental procedures performed by a Dentist or Surgeon.

(b)                      Elective surgery for cosmetic (e.g. breast implants, liposuction, gastric banding), contraception, and conception procedures.

(c)                      Illness or injury caused through the employee’s fault or misconduct.

(d)                      Obstetrician costs in excess of $2000 per financial year.

(e)                      Illness or injury caused by Secondary Employment.

(f)                       Illness or injury due to participation in the following sporting activities:

(i)         Racing, other than on foot;

(ii)       Diving with an artificial breathing device (unless the employee has an open water diving certificate or is being directly supervised by a qualified diving instructor);

(iii)     Hang-gliding, skydiving or activities involving a parachute;

(iv)      Mountaineering or rock climbing;

(v)       Hunting;

(vi)      Yachting which involves sailing in international waters;

(vii)    Any sporting activity played in a professional capacity for which the employee receives a financial sponsorship or other financial reward.

(g)                     Illness or injury that occurs during a period of leave without pay.

(h)           Experimental surgery for which there is no Medicare Number at the time of the surgery.

(i)             Medical and pharmaceutical expenses incurred by officers whilst outside of Western Australia on paid or unpaid leave.

Making a Claim

(4)           A minimum amount to be reimbursed of $200 must be accumulated in medical and pharmaceutical expenses before a claim is to be submitted to Health and Welfare Branch, provided that on termination of an employee's employment, all outstanding amounts will be paid. A rolling date of 24 months from the date of treatment is allowed for employees to claim reimbursement.

(5)           An employee claiming reimbursement of expenditure shall submit with his or her claim:

(a)           in the case of expenditure of a kind referred to in subclause (1) of this clause -

(i)             a receipt for the amount paid;

(ii)           a statement of the amount received as Medicare benefits;

(iii)         a statement of the amount received from a private health insurer or other benefit fund;

(iv)          where applicable, documentary evidence that the health service not provided by a medical practitioner was provided under a referral given by a medical practitioner; and

in the case of expenditure of a kind referred to in subclause (2) of this clause, a receipt for the amount paid, and the Employer, before approving payment, may require the employee to supply additional information as to the identity of the person treated, the amount paid or, where applicable, the prescription.

16 Macquarie Concise Dictionary, 6th edn (2013) at page 388 on ‘entitle’.

17 Burnie Port Corporation Pty Ltd v Maritime Union of Australia [2000] FCA 1768 [22].

18 In letters dated 18 September 2015 and 13 January 2016 addressed, ‘To Whom it May Concern’.

19 Employee Grievance Face Sheet of 10 March 2016.

20 Lodged by the claimant with the Commissioner on 13 August 2015.

21 In a letter dated 18 September 2015 addressed, ‘To Whom it May Concern’.

22 In a memorandum written by the claimant in October 2015 and included in ‘BM5’ at page 25 of the Affidavit of the claimant sworn 20 June 2018.

23 Lodged by the claimant with the Commissioner on 13 August 2015.

24 In a letter of Dr Prichard dated 18 September 2015 addressed, ‘To Whom it May Concern’ and in a memorandum written by the claimant in October 2015 and included in ‘BM5’ at page 25 of the Affidavit of the claimant sworn 20 June 2018.

25 HBF statement of benefit.

26 Transcript, ts 24 – 25 (27 June 2018).

27 Macquarie Concise Dictionary, 6th edn, 2013, page 1086.

28 Macquarie Concise Dictionary, 6th edn (2013) at 725 on ‘may’: ‘1. expressing uncertainty… 2. to have permission to…3. to be possible’

29 ‘Submissions on Behalf of the Claimant’, 26 June 2018, paragraphs [15] – [16]

30 ‘Submissions on Behalf of the Claimant’, 26 June 2018, paragraphs [23] – [25]

31 ‘Submissions on Behalf of the Claimant’, 26 June 2018, paragraph [17]

32 ‘Submissions on Behalf of the Claimant’, 26 June 2018, paragraph [17]

33 ‘Submissions on Behalf of the Claimant’, 26 June 2018, paragraph [20] – [22]

34 For the purpose of determining whether the dispute was within the jurisdiction of the Western Australian Industrial Relations Commission, see IR Act, sections 7 and 23.