Pooley v Commissioner of Police

[2009] WASCA 67

JURISDICTION     :   WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT

CITATION:   POOLEY -v- COMMISSIONER OF POLICE [2009] WASCA 67

CORAM:   WHEELER J

PULLIN J
LE MIERE J

HEARD:   12 NOVEMBER 2008

DELIVERED          :   1 APRIL 2009

FILE NO/S:   IAC 3 of 2008

BETWEEN:   JIM VICTOR POOLEY

ALAN JOSEPH GORDON
JAMES MICHAEL NEVIN
Appellants

AND

COMMISSIONER OF POLICE
Respondent

ON APPEAL FROM:

Jurisdiction              :  WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Coram  :RITTER AP

BEECH CC

SCOTT C

Citation  :POOLEY & ORS v COMMISSIONER OF POLICE [2008] WAIRC 00217

File No  :FBA 18 of 2007, FBA 19 of 2007, FBA 20 of 2007

Catchwords:

Industrial law (WA) - Appeal against decision of Full Bench of Western Australian Industrial Relations Commission - Whether an industrial agreement under the Industrial Relations Act 1979 can have retrospective effect

Legislation:

Industrial Relations Act 1979 (WA), s 41

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellants:     Mr P R Momber

Respondent:     Mr G T W Tannin SC & Ms E M L Mills

Solicitors:

Appellants:     Peter Momber

Respondent:     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Corlett Bros Pty Ltd v Transport Workers Union of Australia, Industrial Union of Workers, Western Australian Branch [1975] WAIG 644

Department of Community Services v Civil Service Association of Western Australia (1994) 74 WAIG 1709

1. WHEELER J:  I agree with Le Miere J.

2. PULLIN J:  I agree with Le Miere J.

   LE MIERE J: 

Introduction

1. Each of the appellants were police officers. Each of them resigned from, and ceased employment with, the police force after the nominal expiry date of the Western Australia Police Service Enterprise Agreement for Police Act Employees 2003 (2003 Agreement) on 30 June 2006 but prior to the registration of the Western Australia Police Industrial Agreement 2006 (2006 Agreement) on 18 December 2006. The 2006 Agreement provided that the Commissioner of Police (Commissioner) will pay employees the increased salary provided for in the agreement as from 1 July 2006. Each of the appellants claimed an entitlement to increased salary and allowances under the 2006 Agreement for the period between 1 July 2006 and the date on which they ceased to be employed. Their claim was rejected by the respondent.

2. Each of the appellants brought proceedings in the Industrial Magistrates Court in which he sought to recover his alleged unpaid entitlements under the 2006 Agreement.  Each of their claims was dismissed by the Industrial Magistrate.

3. Each of the appellants appealed to the Full Bench of the Western Australian Industrial Relations Court.  The Full Bench dismissed each of the appeals.  Each of the appellants now appeals to this court from the dismissal of those appeals.

2003 Agreement continued in force

1. Section 41(6) of the Industrial Relations Act 1979 (WA) (the Act) provides that notwithstanding the expiry of the term of an industrial agreement, it shall, subject to the Act, continue in force in respect of all parties thereto, except those who retire therefrom. Accordingly, the 2003 Agreement continued in force until the registration of the 2006 Agreement on 18 December 2006. Each of the appellants ceased to be a police officer and a member of the police union between 30 June 2006 and 18 December 2006; that is, at a time after the nominal expiry of the 2003 Agreement and before the registration of the 2006 Agreement and at a time at which the 2003 Agreement continued in force in respect of each of them and the Commissioner by reason of s 41(6) of the Act.

1. Section 83 of the Act provides that where a person contravenes or fails to comply with a provision of, amongst other things, an industrial agreement, a number of people including any person to whom it applies, may apply to an industrial magistrate's court for the enforcement of the provision.  Section 83A provides that where in any proceedings under s 83 it appears that an employee has not been paid the amount which he was entitled to be paid the Industrial Magistrate's Court shall, subject to exceptions not presently relevant, order the employer to pay to the employee the amount by which the employee has been underpaid.  Each of the appellants applied to the Industrial Magistrate's Court for enforcement of the 2006 Agreement.  They alleged that the respondent had failed to comply with a provision of the 2006 Agreement by failing to pay them the increased salary provided for in the agreement for the period between 1 July 2006 and the date on which they ceased to be employed.  Each of the appellants claimed to be paid the amount which he had been underpaid.

Provisions of the Act relating to industrial agreements

1. Industrial agreement is defined in s 7 of the Act to mean an agreement registered by the Commission under the Act as an industrial agreement

2. Section 41(1) of the Act provides that an agreement with respect to certain matters may be made between an organisation or association of employees and any employer or organisation or association of employers. Section 41(2) provides that subject to s 41A and other provisions not presently relevant, where the parties to such an agreement apply to the Commission for registration of the agreement as an industrial agreement the Commission shall register the agreement as an industrial agreement.

3. Section 41(4) provides:

   An industrial agreement extends to and binds - 

   (a)all employees who are employed ‑ 

   (i)in any calling mentioned in the industrial agreement in the industry or industries to which the industrial agreement applies; and

   (ii)by an employer who is ‑ 

   (I)a party to the industrial agreement; or

   (II)…

   and

   (b)all employers referred to in paragraph (a)(ii)

   and no other employee or employer, and its scope shall be expressly so limited in the industrial agreement.

The 2006 Agreement

1. The 2006 Agreement was executed on 11 December 2006 and registered by the Commission on 18 December 2006.

2. Clause 1(2) of the 2006 Agreement provides that the agreement replaces the 2003 Agreement.

3. Clause 4(1) provides that the agreement shall operate from the date of its registration to 30 June 2009.

4. Clause 4(2) provides:

   (a)Despite subclause (1), above, the Employer will pay employees the increased salary and allowances (other than the covert allowance) provided for in this Agreement as from 1 July 2006;

   (b)Payment of shift allowance under clause 16 for shifts worked on or after 1 July 2006 but before the registration of this Agreement will be based on the shift definitions set out in the [2003 Agreement].  (For example, an employee who works an afternoon shift (as that term is defined in the [2003 Agreement]) after 1 July 2006 but before registration of this Agreement will be entitled to payment for that shift at the afternoon rate specified in this Agreement.  This is the case irrespective of whether, under this Agreement, the shift work would have been classified as an afternoon shift or an evening shift).

5. Clause 5(1) provides that the agreement shall extend to and bind, amongst others, all members of the Western Australia Police Force subject to exceptions not presently relevant.

6. Clause 6 defines 'employee' relevantly to mean any person appointed under the provisions of the Police Act 1892 as a Member of the Western Australia Police Force.

Evidence of Ms Lavell

1. Clause 1(4) of the 2006 Agreement provides:

   As at 1 July 2006, the number of employees subject to this Agreement totalled 5,311.

2. Ms Lavell gave evidence before the Industrial Magistrate about that clause.  At the material time she was Acting Manager Employee Relations at WA Police.  She was involved in the day to day negotiations with the WA Police Union for the 2006 Agreement, which she drafted.  The negotiations commenced early in 2006.  The Commissioner received in April 2006 what she described as a log of claims, sent as a version of the 2003 Agreement marked up with new claims.  In this document there was no number in the clause referring to the estimated number of employees covered by the agreement but the date inserted was 1 July 2006.  Ms Lavell said that was the expected date of registration of the new agreement.

3. The April 2006 draft agreement was not acceptable to the respondent.  On 7 July 2006 the respondent sent to the union a marked up version of the April 2006 draft agreement.  In that document there was reference to the estimated number of employees to be covered by the agreement as at 1 July 2006.  This was included because of the requirement in the Act to set out the estimated number of employees who would be subject to the agreement.  Ms Lavell inserted the number of 5,311.  She received this number from an officer at WA Police.  Ms Lavell said the number included all sworn officers at WA Police including the Commissioner, Deputy Commissioners and Assistant Commissioners whose salaries would not be covered by the agreement but determined under the Salaries and Allowances Act 1975 (WA).

4. The July 2006 draft agreement was not acceptable to the union.  On 20 September 2006 the union applied to the Commission for an enterprise order because negotiations between the parties did not appear to be able to reach an agreement.  That application was sent for arbitration to commence on 6 December 2006.  Arbitration did not proceed because the parties formed the view that an industrial agreement could be reached.  Prior to 6 December 2006 Ms Lavell had been preparing for the arbitration.  She was due to fly to France on 10 December 2006.  Ms Lavell was instructed to start drafting an industrial agreement on 6 December 2006 and was told that it needed to be ready for filing on 11 December 2006.  Due to the short time available Ms Lavell used the July 2006 draft as the basis for drafting the agreement even though the final details of the 2006 Agreement were not yet agreed.  Ms Lavell said that as she had only four days to draft the agreement she did not change the number of employees from 5,311 because she knew that the number there only needed to be an estimate and she did not have time to get an up to date figure.

Full Bench reasons for decision

1. The Acting President, with whom Scott C agreed, held that an industrial agreement under the Act cannot bind an employer to make payments to former employees even if by the terms of the agreement there is an obligation to make increased payments to employees for a period prior to its commencement. That is because s 41(4) of the Act provides that an industrial agreement extends to and binds all employees who are employed. This does not include persons who were employees but who are not employees at the time the agreement is registered.

2. The Acting President also found that as a matter of construction of the industrial agreement the appellants were not entitled to the increased salary and allowances payable under the 2006 Agreement between 1 July 2006 and the dates on which they ceased employment.  Clause 4(2)(a) requires the employer to pay the increased salary and allowances to 'employees'.  Clause 4(1) provides that the agreement shall operate from the date of its registration.  The Acting President found that 'employees' in cl 4(2)(a) refers to persons who were employees on 18 December 2006 but not to persons who ceased to be employees before 18 December 2006.  Having regard to the evidence of Ms Lavell, the Acting President did not accept that cl 1(4) supported the appellants' case.

The appellants' case

1. There are seven grounds of appeal. Essentially they raise two arguments. First, the Full Bench erred in finding that as a matter of law an industrial agreement only applies to people who are employees at or after the date of registration. The appellants say that industrial agreements registered under s 41 and s 41A of the Act can have retrospective effect in the sense that the agreement may apply to persons who were employees before the registration of the agreement but are no longer employees at the time of registration of the agreement. Whether or not an industrial agreement has retrospective effect and the extent of that effect is a matter of the construction of the agreement.

2. Secondly, the appellants say that the Full Bench erred in law in finding that upon its proper construction the 2006 Agreement does not apply to persons who ceased to be employees at the date of registration of the agreement.  The appellants say that the words in cl 4(2)(a) and (b) of the 2006 industrial agreement give a retrospective effect to the 2006 Agreement in the sense that it applies to persons who were employees of the respondent on 1 July 2006 but who were not employees of the respondent at the date of registration of the agreement.

Can an industrial agreement have retrospective effect?

1. The appellants submit that Corlett Bros Pty Ltd v Transport Workers Union of Australia, Industrial Union of Workers, Western Australian Branch [1975] WAIG 644 is authority for the proposition that a registered industrial agreement may by its wording operate retrospectively and include former employees.  In Corlett Bros an award was amended on 4 October 1974.  The effect of the amendment was to increase the award rates of pay.  The order amending the award provided that the amendment shall take effect in respect of the wage rates as from the first pay period commencing on and after 22 July 1974.  The relevant worker was employed for the period 22 July 1974 to 30 August 1974.  The union took proceedings against the appellant alleging that the appellant was in breach of the award in that it had failed to pay the worker in accordance with the award as amended for the period 22 July to 30 August.  The Industrial Appeal Court held that the worker was entitled to be paid in accordance with the amended award for the period 22 July to 30 August.  Burt J (as he then was) said at 645:

   The complaint was that on the pay days falling within the period 22nd July to 30th August the appellant had failed to pay the worker at the then award rate.  And the amendments having been given true retrospective operation, the wage rates during that period were the rates set out in the amending order, and this because being retrospective one is required, as to the past date and to the past period to which it relates, to take the award to have been that which it was not.

2. In Corlett Bros the Industrial Appeal Court was considering an award which was amended and by its terms, and the terms of the order, had retrospective effect. Section 92(2)(aa) of the Industrial Arbitration Act 1912 ‑ 1973 then provided that the Commission may by its award give such retrospective effect to the whole or any part of the award as the Commission may consider equitable.  Section 39 of the Act similarly empowers the Commission to give retrospective effect to the whole or any part of an award.

3. The Act does not expressly empower the Commission to give retrospective effect to an industrial agreement in whole or in part.  Corlett Bros does not support the appellants' contention that an industrial agreement may have retrospective effect.  The appellants referred to a number of other authorities to support their contention.  Those authorities do not support the appellants' contention and it is not necessary or helpful to refer to them in these reasons.

4. Section 83 of the Act empowers an Industrial Magistrate to enforce industrial instruments including an industrial agreement. An industrial agreement is defined by s 7 to mean an agreement registered by the Commission as an industrial agreement. An industrial agreement only takes effect from the date of its registration. Before an agreement is registered it is not an industrial agreement and the provisions of the Act relating to industrial agreements, including s 41 that provides that an industrial agreement extends to and binds the employees there described, have no effect. In Department of Community Services v Civil Service Association of Western Australia (1994) 74 WAIG 1709 at 1712 Franklyn J said:

   There is nothing in the Act which authorises or permits the Commission to order than an agreement registered as an industrial agreement have effect from a date earlier than the date of registration.  By definition (see s 7) an agreement only becomes an 'industrial agreement' when registered as such.  The Act gives effect only to the provisions of an 'industrial agreement'.  To order that on registration it had effect from a date prior to its registration is to purport to give effect to it as an industrial agreement over a period of time when it was not in fact such.  That in my opinion, is clearly contrary to the provisions of ss 7 and 41.  In my opinion, the industrial agreement took effect as such only from the date of its registration.

5. The respondent concedes that it is arguable that, although an industrial agreement only has effect from the date of its registration, the parties may agree that certain entitlements are to begin from some earlier date.  Clause 4(2) of the 2006 Agreement appears to be such a provision.

6. The 2006 Agreement extends to and binds employees by reason of s 41 of the Act. Section 41(4) of the Act provides that an industrial agreement extends to and binds, amongst others, all employees who are employed in any calling mentioned in the industrial agreement in the industry or industries to which the industrial agreement applies.

7. The words 'who are employed' refer to persons who are employed in the relevant calling by an employer who is a party to the industrial agreement during the time the industrial agreement is in effect. It does not refer to employees who were employed at a time before the industrial agreement came into effect; that is, before its registration. Persons who were employees prior to the registration of the industrial agreement but not as at the date of the registration are not 'employees who are employed' for the purposes of s 41(4). The industrial agreement does not extend to and bind them. The 2006 Agreement did not apply to the appellants and they were not entitled to any payments under it.

8. Further, the Acting President, with whom Scott C agreed, was correct in concluding that s 41A(2), supports the position that only present, and not past, employees or members of organisations or associations of employees are covered by an industrial agreement. Section 41A(2) provides that the Commission shall not register an agreement as an industrial agreement to which an organisation or association of employees is a party, unless the employees who will be bound by the agreement upon registration are members of, or eligible to be members of, that organisation or association. The ordinary and natural meaning of the subsection is that the employees must be members of the organisation upon registration; that is, at the time of registration or thereafter whilst the industrial agreement is in force.

9. The Full Bench was right to find that an industrial agreement only applies to persons who are employees whilst the agreement is in force, commencing on the date of its registration.

Construction of the 2006 Agreement

1. The finding that on the proper construction of the Act an industrial agreement only applies to persons who are employees at the date of registration of the industrial agreement and thereafter whilst the industrial agreement is in force is sufficient to dispose of the appeal.  However, I will consider the issue raised by the appellants' second argument; that is, whether, on its proper construction, the 2006 Agreement applies to persons who were employees prior to the registration of the agreement.

2. Clause 4(2)(a) provides that despite subclause 1, the employer will pay employees the increased salary and allowances (other than covert allowance) provided for in the agreement as from 1 July 2006.  The agreement does not expressly state whether the 'employees' referred to are persons who were employees during the time the agreement is in effect or also includes employees who were employees as from 1 July 2006 but not during the time the agreement was in force.

1. The agreement should be construed having regard to the provisions of the Act providing for the making and registration of an industrial agreement.  The court should not attribute to the parties an intention that the agreement should apply to persons who are not employees during the time the agreement is in force because the Act provides that the industrial agreement does not extend to or bind such persons.

2. Clause 1(4) does not alter that position.  It is merely an estimate of the number of employees covered by the agreement as at the date of registration by stating the number of employees as at 1 July 2006.  Clause 4(1) does not indicate that the agreement is intended to apply to persons who were not employees at the date of registration.

Conclusion

1. The grounds of appeal are not made out.  The 2006 Agreement did not extend to and apply to the appellants.  The appellants are not entitled to be paid the increased salary provided for in the agreement for the period between 1 July 2006 and the date on which they ceased to be employed.  The appeal must be dismissed.