Australian Workers' Union v Pasminco Australia Ltd

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Industrial Relations Act 1996 Police Act 1990 Police Regulation 2008

Australian Workers' Union v Pasminco Australia Ltd (2003) 131 IR 1 Ormerod v Blaslov (1989) 52 SASR 263 CASES CITED: Electricity Trust of South Australia v Krone (Australia) Technique Pty Ltd (1994) 51 FCR 540; 123 ALR 202 Quality Bakers v ALHMWU [2004] NSWIRComm 318 RF Brown & Co Ltd v T & J Harrison (1927) 43 TLR 394 Unity APA Ltd v Humes Ltd (No 2) [1987] VR 474

APPLICANT Mr M Spring Police Association of New South Wales LEGAL REPRESENTATIVES: RESPONDENT Mr A Woods solicitor Henry Davis York Lawyers

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

NOTIFICATION UNDER SECTION 130 BY POLICE ASSOCIATION OF NEW SOUTH WALES OF A DISPUTE WITH COMMISSIONER OF POLICE RE DRAFT POLICY

1 This matter comes before the Commission as a result of a notification by the Police Association of New South Wales ("the Association"), of a dispute existing between the Association and the Commissioner of Police ("the Commissioner"). The issues in dispute are as follows: (i) the proper interpretation of cl 55 "Competency Based Incremental Progression" of the Crown Employees (Police Officers - 2005) Award, which is now cl 56 of the Crown Employees Police Officers - 2008) Award; (ii) what should occur following a lifting of a suspension without pay imposed under cl 22 of the Police Regulation 2000 where the officer is returned to duties. Clause 22 is now cl 51 of the Police Regulation 2008; (iii) the impact of the proper application of item 2 on Detective Senior Constable Taylor. 2 The facts, as outlined by Mr M Spring, who appeared for the Association, were that since 2001, meetings and discussions have taken place between the parties to this dispute in respect of the NSW Police Suspension Policy and Procedures ("the Suspension Policy"). There are two issues that remain outstanding in respect of the Suspension Policy. They are how an application for payment of monies upon return to the workforce of a police officer who was suspended without pay should be dealt with and secondly, the entitlement of a suspended officer to incremental progression during the period of the suspension. 3 The factual circumstances that gave rise to the dispute were that Senior Constable Phillip Taylor was subject to criminal proceedings for four counts of assault, which were heard and determined in the Local Court on 31 October 2003. Senior Constable Taylor was convicted of one count of assault and fined $1,000 and $61 court costs. A second count of assault was proved, but dealt with by way of s 10 of the Crimes (Sentencing Procedure) Act 1999. The other two counts of assault were dismissed. The conduct of Senior Constable Taylor was considered by the Internal Review Panel on 11 December 2003. On 30 December 2003, Senior Constable Taylor was suspended without pay, the suspension taking effect from 6 January 2004. 4 An appeal was heard and determined in the District Court of New South Wales by Judge Balla on 30 July 2004. Her Honour dismissed the appeal in respect of the assault which was dealt with by way of s 10 of the Crimes (Sentencing Procedure) Act 1999. In respect of the assault in which a conviction was entered, her Honour set the conviction aside. 5 The Commissioner gave consideration to removing Senior Constable Taylor from the NSW Police pursuant to s 181D of the Police Act 1990 ("the Act"). After considering the Senior Constable's response, a Commissioner's warning notice under s 173 of the Act (non-reviewable action) was served on the officer on 30 December 2004. Subsequently, the Commissioner's delegate determined that Senior Constable Taylor's salary should not be re-credited during the period that he was suspended. The Association contends that the decision not to reimburse salary to Senior Constable Taylor should have been made under s 173 of the Act, as "reviewable action", which I shall now consider. 6 The policy statement underpinning the Suspension Policy is that the suspension of a police officer from office is a risk minimisation strategy only. Suspension is not to be used as a penalty, or management action. The Policy states: "Suspension from office is an extreme measure and should only be exercised when no viable alternative is available." 7 Section 219 of the Act relevantly provides: 219 Regulations (1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act. (2) In particular, the regulations may make provision for or with respect to the following: ... (k) the suspension of police officers from office (with or without pay) pending investigation of alleged misconduct or unsatisfactory performance or pending action under Division 1 of Part 9 with respect to misconduct or unsatisfactory performance, ...

8 The authority to suspend a police officer is now found in cl 51 of the Police Regulation 2008 which provides: (1) If the Commissioner has reasonable cause to believe that the conduct of a police officer has been such as to justify; (a) the taking of section 80 dismissal action or the making of a section 181D order with respect to the officer, or (b) the institution of criminal proceedings against the officer, the Commissioner may suspend the officer from office (with or without pay) pending further investigation and decision as to the action to be taken. (2) If it is established to the satisfaction of the Commissioner that a police officer under suspension from office without pay is suffering undue hardship, the Commissioner may approve of the officer obtaining other employment for such period as the Commissioner may direct. (3) If it is established to the satisfaction of the Commissioner that the officer or the officer's family will suffer undue hardship because of the suspension from pay, the Commissioner may approve a maintenance payment of not more than 100% of the salary of the officer at the time of the suspension. 9 Section 31 of the Act enables some of the powers and functions conferred on the Commissioner to be delegated to other employees of NSW Police by him. The Commissioner has delegated the exercise of powers under cl 51 of the Police Regulation to officers holding the positions of: (i) Deputy Commissioner, Field Operations; (ii) Deputy Commissioner, Specialist Operation; (iii) Executive Director, Corporation Services; and (iv) Assistant Commissioner, Professional Standards. 10 The Suspension Policy provides that consideration must be given to suspending an officer if there is reasonable cause to suspect their conduct has been such as to justify a s 181D removal, or a s 80(3) dismissal, or the institution of criminal proceedings. The Suspension Policy provides as follows in respect of suspension without pay: In line with this principle and Premier's Memorandum 94-35, suspension from office should be approved with pay unless exceptional circumstances exist. These include but are not limited to when the subject officer: · has been remanded in custody, or · has admitted to behaviour which makes them unfit to continue in paid employment with the NSW Police Force or · has been convicted of a serious criminal office, or · is the subject of significant evidence establishing their corruption or serious misconduct. The fact that exceptional circumstances exist does not preclude suspension with pay being approved. 11 It was common ground that the decision to suspend Senior Constable Taylor was in accordance with Premier's Memorandum 94-35 and cl 51 of the Police Regulation. The Association also accepted that there was no legislative obligation on the Commissioner to reimburse pay or other monies withheld from officers, but submitted that there is a long standing custom and practice for the Commissioner to reimburse salary and salary based allowances to officers who return to duty after they have been exonerated. This is consistent with the general public sector practice of withholding salary pending the outcome of a disciplinary matter. The Commissioner submits that it can not be said that Senior Constable Taylor was in any way exonerated. 12 Putting aside the question of an officer being exonerated or, alternatively, dealt with under s 181D (removal) if an officer returns to the workplace, such officer may be dealt with under s 173 of the Act. Relevantly, s 173 provides:

173 Commissioner may take action with respect to police officer's misconduct or unsatisfactory performance (1) In this section: non-reviewable action means action referred to in Schedule 1. reviewable action means action referred to in subsection (2), other than non-reviewable action. (2) The Commissioner may order that the following action be taken with respect to a police officer who engages in misconduct: (a) a reduction of the police officer's rank or grade, (b) a reduction of the police officer's seniority, (c) a deferral of the police officer's salary increment, (d) any other action (other than dismissal or the imposition of a fine) that the Commissioner considers appropriate. ... (8) An order for action referred to in subsection (2) takes effect: (a) in the case of non-reviewable action, when the order is made, or (b) in the case of reviewable action, at the expiry of the time within which an application for a review of the order may be made under section 174 or, if such an application is made within that time, when the application is finally determined. 13 Reviewable action (s 173(2)) provides an officer with the option of having an order made by the Commissioner dealt with by the Industrial Relations Commission of New South Wales. Non-reviewable action which, as its term suggests, means that an officer does not have the option of bringing the action before the Industrial Relations Commission of New South Wales. Such action includes coaching, mentoring, counselling, reprimand, warning, personal developments, restricted duties and recording of adverse findings. 14 The Association argues that a refusal to convert a suspension without pay into a suspension with pay following a return to duties amounts to a type of order contemplated by s 173 of the Act. 15 The draft policy makes provision for the application for payment of monies upon return to the workplace. It provides: Clause 22 [now cl 51] of the Police Regulation gives the Commissioner of Police the power to suspend officers without pay. There is no legislative obligations on the Commissioner to reimburse pay or other monies that are withheld from officers during a period they are suspended without pay. However, upon their return to the workplace officers may request a payment in respect of the pay or other monies that are withheld from them during their period of suspension without pay. Such payments are made at the discretion of the delegated authorising officer and should not be considered to be an entitlement. Applications must be forwarded to the General Manager, Industrial Relations Section (Human Resource Services), via the officer's commander/manager. Applications will be considered on their individual merits under the general principle of whether the officer has been cleared of any wrongdoing and has been returned to normal duties. All applications must contain the specific circumstances of the case and sufficient detail so that the withheld monies for the period of suspension without pay can be calculated. The officer's commander/manager will be advised of the outcome of the assessment and is responsible for advising the officer.

Clearly, the Commissioner or his delegate will be required to determine any application made by an officer for the payment of monies that were withheld during a period of suspension. 16 Mr A Woods solicitor, who appeared for the Commissioner, submitted that such a decision is, in effect, a decision in respect of cl 51 of the Police Regulation and could not be "a decision or action" made pursuant to s 173 because that section provides a power to the Commissioner to make an order that will operate prospectively. This, so it was submitted, is demonstrated by s 173(8) which identifies when the action takes effect in respect of reviewable action. Mr Woods further submitted that the actual action about which the Association complains has, in its nature, already occurred because the officer was without pay during the period of suspension. The only decision that has been made is not to change an earlier decision. In my opinion, this submission is misconceived. 17 The decision in respect of whether the withheld monies should be repaid to the officer cannot be a decision in respect of cl 51 of the Regulation. 18 Section 219(2)(k) of the Act or reg 51 of the Police Regulation gives the Commissioner power to withhold monies from an officer suspended without pay. The operative word in reg 51 is "pending". The Commissioner can suspend an officer with or without pay "pending further investigation and decision as to the action to be taken." If the Commissioner after investigation decides not to take any further action and therefore nothing further is pending, it does not seem to me that in such circumstances the Commissioner has any basis to withhold the monies that accrued to the officer during the period of suspension. 19 The suspension policy is expressed specifically to be not punitive and in these circumstances, it enables the Commissioner to adjust his position in respect of a suspension without pay subject to the outcome of any investigation. It seems to me that there is no collision between s 219(2)(k) of the Act, reg 51 of the Police Regulation and s 173 of the Act. Section 219(2)(k) of the Act does not address what is to be done with any monies withheld from an officer during a period of suspension. This section merely deals with a temporal situation and does not address what occurs if the suspension is lifted. 20 If the suspension is lifted and further action is taken by the Commissioner in respect of what is contended to be misconduct on the part of an officer, then, in my opinion, this becomes an action under s 173 of the Act. This section deals with two classes of action. Firstly, in broad terms, those matters referred to Sch 1 (s 173(1), which I shall describe as being rehabilitating actions which enable an officer to adjust his position without penalty. The second class of actions are those found in s 173(2) of the Act. These actions are clearly meant to deals with conduct which is regarded as less serious than conduct which attracts the provisions of s 181D, that is, loss of confidence by the Commissioner and removal of the officer from the NSW Police. Section 181D deals with a special class of misconduct and became operative from 16 December 1996, prior to being amended in 1997. Section 173 became operative from 8 April 2001. This section deals with the balance of action that the Commissioner may impose excluding dismissal. 21 The non-payment of monies withheld by the Commissioner pending an investigation and a decision by the Commissioner to refuse reimbursement of such monies is clearly punitive. Put another way, it is a disciplinary action. Putting aside s 219 and reg 51, s 173 reaches out of service conduct once a decision has been made to refuse an application for payment of monies withheld from an officer during a period of suspension. Such a decision falls outside the regulation and is in the nature of a disciplinary action based on misconduct. Section 173(2) deals with a particular class of misconduct, as does s 173(1), but limits the action of the Commissioner to a requisite kind of action as found in the schedule. If the action is disciplinary, then it clearly fits within the scheme of s 173 and causes in respect of s 173(2), a loss to the officer. 22 In my opinion, it is clear that the action taken by the Commissioner to refuse to reimburse monies withheld during a period of suspension falls within s 173 of the Act. To construe such action otherwise would be to construe the Act in a way that permits the Commissioner to engage in a disciplinary action which is unreviewable when in every other case in respect of action taken by the Commissioner which results in a loss to the officer, such action is reviewable. The legislature could not have intended such a consequence. or anomaly. Every action, the subject of the discretion of the Commissioner found in s 173(2)) is reviewable, so should this action. 23 In light of this conclusion, I recommend, pursuant to s 136(1)(a) of the Industrial Relations Act 1996, that the decision to reject Senior Constable Taylor's application for payment of monies withheld during his period of suspension be dealt with in accordance with the provisions of s 173(2)(d) and s 174 of the Act. 24 The second issue raised in this dispute relates to the incremental progression of officers during periods of suspension. The Association's submissions focus on the proper interpretation of cl 56(xii) of the Crown Employees (Police Officers 2008) Award ("the Award") and the draft Suspension Policy which states:

Suspended officers are not entitled to incremental progression during periods of suspension. 25 Clause 55, Competency Based Incremental Progression of the 2005 Award, now cl 56 of the 2008 Award, sets out the provisions relating to incremental progression. 26 In considering the meaning of the Competency Based Incremental Progression clause it is not appropriate to attempt to interpret subclause (xii) in isolation to the entirety of the clause. In Australian Workers' Union v Pasminco Australia Ltd (2003) 131 IR 1, the Full Bench determined an appeal relating to the proper approach to the interpretation of an award. The Full Bench observed at [36]: The relevant principles to be applied when interpreting industrial instruments are well settled. See for example Kingmill Australia Pty Ltd (t/a Thrifty Car Rental) v Federated Clerks' Union of Australia (NSW Branch) (2001) 106 IR 217 and Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity [2003] NSWIRComm 135. In essence, the primary consideration is the actual words used and the context in which they appear. The context of the words used may extend beyond those in the immediate proximity, to the document as a whole and also to other documents with which there is an association. The importance of the language or text of the instrument in its construction was referred to in the recent High Court decision in Australian Communication Exchange Ltd v Deputy Commissioner of Taxation (2003) 77 ALJR 1806 at [8] per Gleeson CJ (in dissent), [38] per McHugh , Gummow, Callinan, Heydon JJ, [59] per Kirby J (in dissent) and [115] per Hayne J (in dissent). 27 As a whole, clause 56 sets out the requirements for officers to be able to move through each increment level as well as movement into grades relevant to the particular division. The first four subclauses set out basic procedure requirements for progression. Subclause (i) identifies the critical requirement of a minimum period of 12 months on each incremental level and compliance with the competency requirements specified in the clause. Subclauses (ii), (iii) and (iv) set out particular obligations of commanders and officers to be able to comply with the requirements for progression in the following subclauses. 28 Subclause (v) sets out specific competency requirements. Subclause (vi) deals with the effect on incremental progression where multiple competencies are not satisfied and subclause (vii) deals with increments falling due during a period of initial remedial training. 29 Subclause (viii) sets out particular requirements for progression through the ranks of Constable, Senior Constable, Sergeant and Senior Sergeant. These link back to the competencies requirements identified in subclause (v). Subclauses (xv), (xvi), (xvii) deal with further requirements in respect of leading Senior Constable, Sergeant, Senior Sergeant and Detective. Subclauses (x), (xi), (xii), (xiii) and (xiv) each deal with particular circumstances where an officer is not able to undertake normal full time duties to be able to demonstrate the required competencies. 30 Clause 56(xii) deals with the specific circumstances of long term absences and provides as follows: 56. Competency Based Incremental Progression (xii) Effect of Long Term Absences Non-Commissioned Officers on secondment, full time leave without pay, special leave without pay, extended sick leave, Workers Compensation/Hurt on Duty absences or returning from suspension shall be regarded as having satisfied the requirements of any entitlement to incremental progression provided that within 6 months of their return to duty they comply with the requirements of this clause. Such Non-Commissioned Officers shall be given appropriate training in order that they are able to reasonably comply with such procedures. Any failure to comply will require the Non-Commissioned Officer to undergo appropriate remedial training. Should the Non-Commissioned Officer then remain unable to meet the requirements of any particular competency, incremental progression shall be deferred in accordance with the provisions of this clause. Provided that the increment subject to deferral in accordance with this sub clause shall be the first increment occurring after the 6 month period. (Italics added). 31 Subclause (xii) has existed in the same form since 1994 with the exception of the words in italics, which first appeared in the 2003 Award. The Association submitted that the italicised sentence was included within the subclause to ensure that any confusion or misinterpretation was removed. 32 Mr Woods submitted that in respect of each of the types of absences with the exception of the absence of an officer caused by suspension, the ability of the officer to meet the competency requirements is either beyond their control or specifically supported by NSW Police. In those circumstances, the officer should suffer no detriment and the subclause addresses that outcome by providing for the accrual and payment of increment/s. I agree with this submission as the subsection is concerned with an officer's continuity of service. 33 It is clear that subclause (xii) provides for the achievement of an increment during the absence of an officer, but places a limit on the deemed progression by requiring an officer to demonstrate or acquire the required competency level within six months of resumption of duties. 34 Mr Woods submitted that although suspended officers are absent by direction, their absences occur in circumstances where they face potential dismissal or criminal proceedings and may be in receipt of pay, or without pay. Mr Woods submitted that the reason for the inability of a suspended officer to demonstrate a competency is of an entirely different character and the Award identifies a different treatment for such officer. It was further submitted that their entitlement to the benefit in subclause (xii) only arises upon "returning from suspension". This led Mr Woods to submit that the fact that this benefit is timed to take effect at that time demonstrates that those officers are treated differently from officers with other absences, such as secondment. The effect of this submission is to read the words "or returning from suspension" out of the subclause. The subclause is clearly dealing with two classes of absences. It is the somewhat clumsy use by the draftsperson of the word "or" that has led to the dispute in respect of the interpretation of the subclause. 35 Authorities on statutory interpretation differ as to the effect of the conjunction, "or" see DC Pearce & RS Geddes Statutory Interpretation in Australia (6th Ed) at 47. It has been read in both a conjunctive and disjunctive sense. In RF Brown & Co Ltd v T & J Harrison (1927) 43 TLR 394, affirmed under the same name by the Court of Appeal (1927) 43 TLR 633, Atkin LJ said at 639: Again, I disagree with the learned Judge in his view that the word "or" can never have a conjunctive sense. I think it quite commonly and grammatically can have a conjunctive sense. It is generally disjunctive, but it may be plain from the collection of the words that it is meant in a conjunctive sense, and certainly where the use of the word as disjunctive leads to repugnance or absurdity it is quite right within the ordinary principles of construction adopted by the Court to give the words a conjunctive use.

See also Unity APA Ltd v Humes Ltd (No 2) [1987] VR 474 at 481 - 2; Ormerod v Blaslov (1989) 52 SASR 263 at 269; Electricity Trust of South Australia v Krone (Australia) Technique Pty Ltd (1994) 51 FCR 540 at 547; 123 ALR 202 at 207 - 208 (for further consideration of the conjunction "or" see Quality Bakers v ALHMWU [2004] NSWIRComm 318 at [24] - [28]). 36 In my opinion, each of the types of absences from duty have been regarded by the draftsperson as important in respect of incremental progression. It is impossible to imagine why one type of absence should be regarded as excluding another. In my view the word "or" should not be read as strictly disjunctive, but as a kind of hybrid disjunctive and conjunctive, equivalent to, "or, or as well", conveying the meaning that in respect of each type of absence an officer will be able to progress through incremental progression provided that the officer achieves the competency of the incremental level within a period of six months after the resumption of normal duties. The use of the word "and" which is what "or" must be taken to mean in the subclause would have avoided any ambiguity. 37 I am fortified in this view by the terms of the last sentence in subclause (xii) which makes it clear that the only increment that may be deferred under the subclause is the one occurring after the expiration of a period of six months following a return to work. It follows that subclause (xii) operates to preclude any deferral of an increment under any other part of cl 56. There is, of course, a statutory provision that allows for a deferral of an increment. This is s 173(2)(c) of the Act. 38 In reaching this conclusion, I am also mindful of the policy statement set out in the introduction to the draft Suspension Policy which states: ... "suspension of a police officer from office is a risk minimisation strategy only. Suspension is not to be used as a penalty or management action." It follows therefore that a deferral of increment should only occur under the Statute after consideration of the misconduct of an officer, or the performance of an officer and the appropriate procedure/s under the Statute are followed. 39 I therefore recommend, pursuant to s 136(1)(a) of the Industrial Relations Act, that the Commissioner of Police alter the wording of the draft Suspension Policy in respect of "Incremental Progression". The first sentence of this provision should read "suspended officers are entitled to incremental progression during periods of suspension, subject to meeting the requirements of cl 56(xii) of the Award". The issues in the dispute are accordingly determined.

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