Commissioner of Police v Bunait

Commissioner of Police v Bunait - [2010] NSWIRComm 16 - NSWIRComm 1994 case summary — Zoe

[11]

1 The Commissioner of Police, pursuant to s 188 of the Industrial Relations Act 1996 (as incorporated into the Police Act 1990 by s 179 of the Police Act), seeks leave to appeal and, if leave is granted, to appeal from a decision of Deputy President Sams given on 16 September 2009 in Gurmit Bunait and Commissioner of Police [2009] NSWIRComm 150. 2 The essential issue on appeal is whether his Honour, the Deputy President, erred in not acceding to the objection and request made by the Commissioner of Police ('the appellant') that a different member of the Commission exercise arbitration powers pursuant to s 173(1) of the Industrial Relations Act. Relevant legislation 3 It would appear from the appeal papers that Mr Bunait had originally applied for the review of an order made by the appellant under s 174 of the Police Act. That matter had been allocated to Sams DP. Section 173 of that Act provides that the Commissioner may take certain action with respect to a police officer's misconduct or unsatisfactory performance. Sections 173 to 187 of the Police Act are in Pt 9 of that Act - 'Management of conduct of NSW Police Force'. Section 174 provides the officer with the right to apply to the Industrial Relations Commission for a review of a 'reviewable action' order made under s 173 on the ground that the order is beyond power or is harsh, unreasonable or unjust. 4 Section 176 of the Police Act provides that the Commission must endeavour, by all means it considers proper and necessary, to settle the applicant's claim by conciliation. Section 177(1) provides that when, in the opinion of the Commission, all reasonable attempts to settle an applicant's claim by conciliation have been made but have been unsuccessful, the Commission is to determine the application. Section 177(4) provides that nothing in the section prevents further conciliation from being attempted at any time before the Commission makes an order or direction under the section. 5 Section 179 of the Police Act provides: 179 Application of Industrial Relations Act 1996

[18]

(c) the member arranged or gave directions for those parties or their representatives to confer among themselves at a conference at which the member was not present. 7 Section 173(1) of the Industrial Relations Act refers to 'attempted conciliation of an industrial dispute or other matter'. In Gabrielle Irene Brennan (trading as "Gai Abandon Clothing") v Lorraine Linda Asciak [2009] NSWIRComm 159 the Full Bench observed at [30]: [30] Section 173 of the Act applies to proceedings brought under Pt 6 of Ch 2 of the Act. The words "or other matter" in s 173(1) are not of unlimited operation but are, rather, confined by the phrase also appearing in the section, "is not to exercise arbitration powers in relation to the dispute or matter". Thus, as Mr Shoebridge put it, the "term 'industrial dispute or other matter' in s 173(1) must be a reference to an 'industrial dispute or other matter' in respect of which the Commission can exercise arbitration powers". As the determination of an unfair dismissal application involves the exercise of arbitration powers (as we will discuss below), s 173 was, therefore, applicable to those proceedings. 8 The determination of an application under s 174 of the Police Act will involve the exercise of arbitration powers if conciliation is unsuccessful and, therefore, may be regarded as an 'other matter' under s 173(1) of the Industrial Relations Act. 9 Pertinently, the Full Bench in Brennan also observed at [31]: [31] Except for an abuse of process, s 173(1) provides an unfettered right to object to a Member of the Commission sitting in arbitration proceedings under Pt 6 of Ch 2 where that Member has conciliated the unfair dismissal application under s 86 of the Act at any time up to commencement of the exercise of arbitration powers: Humphries v Cootamundra Ex-Services and Citizens Memorial Club Ltd (2001) 121 IR 122 at [12] and Commissioner of Police v Police Association of NSW (2005) 141 IR 423 at [25] and [28]. However, the right conferred under s 173(1) is extinguished by the commencement of arbitration proceedings without prior objection: Public Service Association (NSW) v Department of Corrective Services IRC 2829 of 1993 (Unreported, Hill and Peterson JJ, Murphy C, 9 December 1994) at 14 and Commissioner of Police at [26]. 10 When one has regard to the relevant provisions of the Industrial Relations Act and the Police Act it is apparent that the general intention of the legislation in relation to applications under s 174 of the Police Act is that, in the first place, the Commission must endeavour, by all means it considers proper and necessary, to settle the applicant's claim by conciliation. When, in the opinion of the Commission, all reasonable attempts to settle an applicant's claim by conciliation have been made but have been unsuccessful, the Commission is to determine the application. However, the member of the Commission who attempted conciliation of the applicant's claim is not to exercise arbitration powers in relation to it if a party to the arbitration proceedings objects and requests that a different member of the Commission exercise arbitration powers. First instance proceedings

[22]

Pursuant to section 173 of the NSW Industrial Relations Act 1996 as preserved by section 179 of the Police Act 1990, we formally request that another member of the Commission be assigned to hear the matter by way of arbitration under section 177 of the Police Act 1990. The Commissioner of Police requests that the member of the Commission who attempted conciliation not exercise arbitration powers in the matter. 15 On 24 August 2009, the respondent's solicitors wrote to his Honour's Associate and advised that the respondent did not consent to the appellant's application under s 173 of the Industrial Relations Act and indicated that the respondent wished to be heard on the issue. The s 173 issue was accordingly listed for hearing on 2 September 2009. His Honour subsequently issued his decision rejecting the appellant's objection and request that a different member of the Commission exercise arbitration powers pursuant to s 173(1) of the Industrial Relations Act. 16 In his first instance decision, Sams DP stated at [20] that: [T]he crucial and relevant consideration in these proceedings, is not that the application was made four days, or even four months, after the issuing of directions in the matter, but whether, in a practical sense, the Commission had moved from the conciliation phase to the arbitral phase. 17 The reference to 'four days' in his Honour's decision appears to be a reference to four business days between when his Honour made the directions for filing and serving evidence (31 July) and when the solicitors for the appellant wrote to the Industrial Registrar indicating reliance on s 173 of the Industrial Relations Act (7 August). Sams DP did not accept that the application under s 173 made four business days after the fixing of directions, constituted 'a timely response to making such an application' (at [21]). At [24] the Deputy President stated: [24] In my opinion, Mr Mattson [solicitor for the appellant] had three opportunities on 31 July to seek further instructions as an alternative to further progressing the matter to hearing. Firstly, when Ms Wood [solicitor for the respondent] declared that the matter was not agreed and she would be seeking dates for a hearing; secondly, when the Commission went off record to discuss programming of the arbitration; and thirdly, when the Commission made a finding of unsuccessful conciliation and proposed making directions in preparation for the arbitration. Moreover, Mr Mattso n then actively co-operated in the programming of the arbitration, without demur. In my view, these circumstances plainly demonstrate that the Commissioner had waived his right to make a s 173 disqualification application. That this is so, is further demonstrated by the fact that Mr Mattson also agreed on the estimate of the time required for hearing and agreed it could be heard in February 2010. In light of these factors, and notwithstanding no actual dates were set for the arbitration, I am comfortably satisfied that the time for making the s 173 disqualification application passed, at least after the proceedings concluded that day, but most certainly by the time the application was made four (seven) days later. Consideration

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18 It is necessary for the Full Bench to consider whether leave to appeal should be granted: s 188 of the Industrial Relations Act. The appeal raises an important question of law regarding the proper statutory construction of s 173(1) of the Industrial Relations Act including when an objection and request under that provision can be properly made: see Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 382 and Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409; (2005) 150 IR 263 at [5]. The Full Bench may also grant leave to appeal in the instance of demonstrable error: King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407 at [54] and Allchin v Commissioner of Police (No 2) [2007] NSWIRComm 280; (2007) 168 IR 170 at [15]. We consider error has occurred at first instance. Accordingly, we have decided to grant leave to appeal. 19 The test that Sams DP appears to have applied in determining that the appellant had not made his s 173 application in a 'timely manner' is that the proceedings had passed from 'the conciliation phase to the arbitration phase'. That is to say, because his Honour had indicated he was satisfied the matter could not be resolved by conciliation and had proceeded then to make directions in respect of arbitration proceedings, his Honour took the view that conciliation was unsuccessful and that, in the absence of any objection from the appellant, he had commenced the 'arbitration phase'. Therefore, according to his Honour's reasoning, it was too late for the appellant to seek to rely on s 173. 20 His Honour adopted this test based on comments of the Full Bench in Commissioner of Police and Police Association of New South Wales [2005] NSWIRComm 132; (2005) 141 IR 423 at [29] and to a lesser degree on the decision of McKenna C in Brown v Coca-Cola Amatil (Aust) Pty Ltd (2002) 123 IR 33 at 43-44. The relevant passage in Commissioner of Police was as follows: [29] Turning then to the other contention the appellant advances, which relates to the stage reached in the proceedings before Boland J, the appellant relies here on the proposition that the proceedings were still at the conciliation stage at the time Boland J dealt with the submissions which were the subject of the decision of 9 March 2005. We do not accept that contention. We consider that Boland J made it clear that the proceedings had moved from the conciliation phase to the arbitration phase and that the decision of 9 March, and the submissions that preceded it in relation to the legal issues raised by the appellant, were part of the arbitration phase. We consider that this conclusion emerges comfortably from the nature of the proceedings heard by his Honour but, in any event, is clearly stated in para [3] of his Honour's decision when he said (our emphasis): [3] Conciliation failed to resolve the dispute and the respondent indicated it wished to press its jurisdictional objection that in the circumstances of this matter the Commission did not have the power to order reinstatement or re-employment. This decision is about whether the Commission has such power. This involves the question of whether the provisions of Ch 2, Pt 6 of the 1996 Act dealing with unfair dismissals, excluded the operation of those provisions of the Act in Parts 1 and 2 of Ch 3 dealing with industrial disputes in circumstances where the claim is for reinstatement or re-employment of a former employee. 21 In Coca-Cola, the relevant passage relied upon was as follows: I also accept the submissions by Ms Ganopolsky that, in a legislative scheme where there is an emphasis on the conciliation of matter prior to any arbitration, there is good policy purpose underlying s 173. Equally, if a party elects not to exercise its s 173 request rights prior to consenting to arbitral phase directions for hearing before the member who had conciliated the matter then the right to automatically effect a disqualification is, I think, waived or forfeited. Matters such as the giving of directions for hearing, the determination of notices of motion and the amendment of summonses are not conciliatory or conciliation phase functions. It would be untenable for a party to have a right under s 173 to automatically remove a member from a matter in circumstances where, for instance, the member had, prior to the start of the hearing of the substantive application, determined adversely to the interests of the party belatedly seeking the disqualification issues such as directions, notices of motion or summonses.

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22 Commissioner of Police concerned an appeal from a single member where it was contended by the appellant that the member had not commenced arbitration, but that even if he had it was submitted that s 173 would still apply to prevent him hearing the matter. The Full Bench rejected both propositions. 23 In relation to the first proposition, the Full Bench did not accept the appellant's contention that because there were jurisdictional issues to be determined by arbitration (and upon which the member had commenced to arbitrate) these were to be distinguished from the 'merit' issues to be arbitrated. The Full Bench held the member had commenced arbitration proceedings after finding conciliation attempts were unsuccessful. 24 In relation to the second proposition, the Full Bench in Commissioner of Police adopted the reasoning of the decision of the Full Bench in Public Service Association of NSW and Department of Corrective Services & Anor [1994] NSWIRComm 148 (Hill J, Peterson J and Murphy CC, 9 December 1994). In Corrective Services the Full Bench considered s 209 of the Industrial Relations Act 1991, which the Full Bench in Commissioner of Police found was in 'virtually identical terms' to s 173 of the Industrial Relations Act 1996. The Full Bench in Commissioner of Police regarded the decision in Corrective Services as 'authoritative': see [22]. 25 Relevantly, the Full Bench in Commissioner of Police, stated: [23] The Full Commission in the 1994 case usefully analysed the terms of s 209 with particular reference to the nature of the conciliation process and said: It is in the nature of conciliation that a member of the Commission may both express views to, and receive views from, a party which may be thought to be contrary to the interests of that or the other party in any later arbitration. It is inherently desirable that the member and the parties should not feel constrained from freely engaging in discussions in the pursuit of settlement by the prospect that the expression of views or positions may redound to their later disadvantage if conciliation should fail. Section 209(1) reflects the view that conciliation may be enhanced by the parties being able to freely explore settlement of a claim without that inhibition. [24] The observations of the Full Commission as to s 209(1) were contrasted with the role of s 209(2) as to which the Full Commission said: Section 209(2), on the other hand, secures to the arbitrator the right to take up an opportunity to further conciliate a matter, after arbitration has commenced, without necessarily endangering the arbitration proceedings up to that time. This provision is, in one sense, contrary to the principle inherent in subs.(1); nevertheless, the function it stands to serve we consider to be most useful. [25] The Full Commission then dealt with the matter in a way which we consider decisive for the present issue when it said: We consider that the right conferred by s.209(1) to require a different member to exercise arbitration powers must, as a matter of logical construction, be exercised before arbitration commences. The right is not expressed in terms which would suggest that a party may permit a member who has conducted conciliation to commence the arbitration but be subject to later disqualification by reason of having conciliated. The words "if either party .... so requires" indicate with clarity that the right is one capable of being waived by non-exercise.

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See also the decision of McKenna C in Brown v Coca-Cola Amatil (Aust) Pty Limited (2002) 123 IR 33. 26 The Full Bench in Commissioner of Police referred to what appeared, on its face, to be a contrary decision to Corrective Services, namely, Humphries v Cootamundra Ex-Services and Citizens Memorial Club Ltd (2001) 121 IR 122 at [12], where the Full Bench held: It must be acknowledged that these circumstances arise due to the present form of s 173 which would appear to provide an opportunity (perhaps save for an abuse of process) to a party to remove a member of the Commission from arbitration proceedings (where that particular member had engaged in conciliation), irrespective of the timing of that application (emphasis supplied). 27 However, in relation to that decision Commissioner of Police stated: [27] The major difficulty which s 173 raises, in a practical sense, is the apparently untrammelled right of a party to disqualify a member at any stage up to when arbitration commences notwithstanding the inconvenience that may cause to other parties or to the Commission's lists if the party exercising its rights under s 173(1) unduly delays in raising the matter. This was the issue considered in the Cootamundra case, to which we now turn. We have already set out para [12] of that decision which is relied upon by the appellant. [28] Although on a literal reading of that paragraph of the Full Bench's decision in Cootamundra it might be thought that s 173(2) does not have the operation discussed in the 1994 Full Commission decision, we consider that to read para [12] of the Cootamundra decision in a literal way would be to misunderstand it. The Full Bench in Cootamundra was referring only to the situation where proceedings had been the subject of conciliation and, at the conclusion of the conciliation, the matter was set down for hearing some time well into the future, presumably because of the limited availability of the parties to the proceedings. There was no consideration in those proceedings of a situation comparable to the present where one party has argued, in substance, that the objection under s 173(1) may be taken at any time, subject only to issues of abuse of process. That construction is clearly not available. It would have absurd results, as the Full Commission in Public Service Association of NSW and Department of Corrective Services & Anor observed. The construction contended for would permit the objection to be taken, for the first time, for example, during the course of final submissions in lengthy proceedings which could have extended over many days of hearing. 28 It is clearly established by the decision in Commissioner of Police that an objection and request under s 173(1) of the Industrial Relations Act may not be raised at any time, but rather it must be raised before the Commission commences to exercise arbitration powers in relation to the industrial dispute or 'other matter' in respect of which the Commission attempted conciliation. The reference in Commissioner of Police at [29] to 'conciliation phase' and 'arbitration phase' is not to be taken to mean that, because the Commission has determined conciliation has been unsuccessful and has proceeded to address procedural issues or make interlocutory adjudications, that automatically means the Commission has commenced to exercise arbitration powers in relation to the industrial dispute or 'other matter' and, therefore, any objection and request under s 173(1) is too late. 29 For instance, in Brennan the Full Bench considered whether a determination under s 85(3) of the Industrial Relations Act (out of time application) involved the exercise of an arbitration power or arbitration proceedings for the purpose of s 173(1). Without determining the question, the Full Bench took the view that it did not. At [35] the Full Bench stated: [35] ... 1. The arbitration powers constrained by s 173(1) are those exercisable in relation to the matter, in this case an unfair dismissal application, brought under Pt 6 of Ch 2 of the Act. This much is clear from the use of the definite article 'the' in the phrase "in relation to the dispute or matter" in the sub-section.

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Viewed in that light, there are a number of aspects of the statutory scheme which point in favour of the view that the legislature did not treat the determination of an 'out of time' application as an arbitration under Pt 6 of Ch 2 of the Act. This is because: (a) Whilst s 87 of the Act does not, by its terms, refer to 'arbitration', it is clear that, where the section refers to the Commission having to "determine the claim", it is a reference to the exercise of such powers. The provisions of that section operate where conciliation has failed. The whole statutory scheme is premised upon unsuccessful conciliation being resolved by 'arbitration' (see, for example, s 3(g)) and, in this context, a determination under s 87 must involve an arbitration. Further, the nature of the powers referred to under s 87(1) are consistent with that conclusion, as is the heading of the section (although this is only of marginal use in construing the statute). (b) The provisions of s 87 (coupled with s 89) specify the determinations that may be made in an arbitration, none of which are coextensive with a power to extend time, although they may well include other interlocutory adjudications, such as the resolution of jurisdiction questions (see Commissioner of Police at [29] and [30]). The expression "making any other order it is authorised to make under the Act" in s 87(1) is wide, but it does not seem to encompass an 'out of time' application, as the order, so made, can only be for the purposes of determining the claim, being a reference to the claim brought under s 84. Such a claim may only be brought within time (s 85(1)) or by the grant of an extension of time (s 85(3)) but in neither case, it would appear, does the claim arise unless one of those conditions is first met (see, the words "may accept" in s85(3) and also the discussion in Commissioner of Police at [30]). (c) None of the matters prescribed in s 88 are referable to a determination under s 85(3), which identifies, by its own provisions, a particular class of factors to be taken into account. (d) If a determination under s 85(3) constituted an arbitration, then it would follow that the legislature contemplated that a determination of that question could only occur after the completion of conciliation. This would appear to be the combined effect of ss 86 and 87 which contemplate the sequential processes of conciliation and arbitration. Such an approach is entirely inconsistent with the policy of resolving preliminary issues, where appropriate, at the earliest available time. It would be an odd result if the legislation contemplated subjecting all 'out of time' questions to an adjudication after conciliation, as such an approach would seem to stand against modern approaches to the efficient and cost effective disposition of proceedings. We have emphasised the word 'all' in the preceding sentence, as parties, by agreement, may well find that a conciliation at an earlier time in the proceedings is the most cost effective means of conducting the unfair dismissal proceedings. (e) Subjecting all 'out of time' applications to a preliminary conciliation would further stand in the face of the restrictions for bringing applications out of time in s 85(1) and jurisprudential notions that an extension of time should never be granted lightly and only for the purposes of ensuring the statutory restrictions (or other such restrictions in rules) do not become instruments of injustice: see WorkCover Authority of NSW (Inspector Salmon) v Parkes Council (1996) 70 IR 298 at 299 - 301; Brady v Kennedy t/as Sardines (1999) 91 IR 258 at 263 - 264 and Hurrell at [13]. 30 The making of directions for the filing and serving of evidence to be relied upon by parties in the arbitration proceedings (in this case the appellant acquiesced in the directions made by the Deputy President on 31 July 2009) cannot be regarded as the Commission commencing to exercise arbitration powers in relation to the respondent's application for relief under s 174 of the Police Act. The Deputy President was merely exercising procedural powers as a prelude to exercising arbitration powers. 31 'Arbitration' is not defined in the Industrial Relations Act or the Police Act. The Macquarie Dictionary (on line edition 2010) relevantly defines the term thus: Noun 1. Law the hearing or determining of a dispute between parties by a person or persons chosen, agreed between them, or appointed by virtue of a statutory obligation.

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33 Further, adopting by analogy what was said in Brennan, if a direction made by the Commission in the exercise of its procedural powers to file and serve evidence constituted an arbitration for the purpose of s 173(1), then it would follow that the legislature contemplated that the direction could only occur after the completion of conciliation. That, in our view, would lead to an absurdity. 34 The Full Bench in Corrective Services explained the rationale underpinning s 209 of the Industrial Relations Act 1991 (that reasoning having been adopted in Commissioner of Police in relation to s 173 of the Industrial Relations Act 1996): It is in the nature of conciliation that a member of the Commission may both express views to, and receive views from, a party which may be thought to be contrary to the interests of that or the other party in any later arbitration. It is inherently desirable that the member and the parties should not feel constrained from freely engaging in discussions in the pursuit of settlement by the prospect that the expression of views or positions may redound to their later disadvantage if conciliation should fail. 35 Sams DP conducted conciliation proceedings on 17 July 2009. It is not known what views were expressed and received during those proceedings, but that does not matter. The appellant was entitled, under the terms of s 173, to object to Sams DP exercising arbitration powers and to request that a different member of the Commission exercise those powers. 36 However, as it has been explained, the right conferred by s 173(1) to require a different member to exercise arbitration powers must (subject to s 173(2)) be exercised before arbitration commences, otherwise an arbitration might proceed at considerable length and cost, with parties retaining the opportunity to utilise their right of objection as they seek to discover indications of the tribunal's thinking. As the Full Bench observed in Corrective Services, '[t]he effect of this risk would be quite detrimental to the proper conduct of proceedings.' 37 In the present case, the Deputy President had not commenced to exercise arbitration powers. Indeed, at the time the appellant indicated his objection under s 173(1), his Honour had not even fixed a hearing date for the arbitration proceedings, although it would make no difference to our conclusions if he had. No relevant prejudice was occasioned to the respondent in the circumstances. 38 Finally, we note what the learned Commissioner said in Coca-Cola. Insofar as it suggests that the position is otherwise than as we have stated it, the decision is wrong and should not be followed. Orders

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