Police Association of New South Wales v Commissioner of Police

Police - Declaratory order - Police Service - Entitlements of police officer under suspension - Suspension "with or without pay" - Suspension "with pay" - Statutory construction - Principles as to statutory construction - History of statutory scheme - Consideration of related or similar provisions - Discretion - Orders made - Costs. Industrial Relations Act 1996 s 154 Police Regulation Act 1899 Police Service Act 1990 s 45 s 46 s 56 s 92 s 93 s 186 s 219 Police Service Regulation 1990 cl 40 cl 71 cl 72 cl 74 cl 74A cl 75 cl 79(1) cl 80 cl 85 - 91 cl 93 cl 96 - 107 cl 109 - 111 LEGISLATION CITED : Police Service Regulation 2000 Public Sector Management Act 1998 Public Service Act 1902 Public Service Act 1979 Workers Compensation Act 1987

"A" v Commission for Children and Young People & Anor [2001] NSWIRComm 194 Atlantis Relocations (NSW) Pty Ltd v Department of Industrial Relations (Inspector O'Regan) (1997) 99 IR 125 Bayley v Bayley [1922] 2 KB 227 Chate v Commissioner of Police and Anor (1997) 76 IR 70 Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 Commissioner for Government Transport v Kesby (1972) 127 CLR 374 Ford v SAS Trustee Corporation (2000) 98 IR 444 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 Keith Miller & Sons Builders Pty Limited v Flemming (1999) 91 IR 399 Langan v Ceramiclab Pty Limited (2000) 97 IR 80 CASES CITED : The Life Insurance Company of Australia Limited v Phillips (1925) 36 CLR 60 Metropolitan Gas Co v Federated Gas Employees' Industrial Union (1925) 35 CLR 449 Metropolitan Water Sewerage and Drainage Board v Histon [1982] 2 NSWLR 720 Mette v Howarth (1935) 53 CLR 55 Nunn v Linde Materials Handling Pty Ltd (1999) 160 QGIG 212 Quin v Attorney General New South Wales (1988) 28 IR 244 Robowash Pty Ltd v Hart [1998] WARComm 53 Rogan v The Director-General of Technical and Further Education (1987) 10 NSWLR 348 Royal Insurance Company Limited v Mylius (1926) 38 CLR 477 Scott v Federal Commissioner of Taxation (1966) 117 CLR 514 State of New South Wales (Department of Public Works and Services and Department of Education and Training) v WorkCover Authority of New South Wales (Inspector Page) (2000) 101 IR 131 Stuart-Robinson v Lloyd (1932) 47 CLR 482 HEARING DATES: 09/11/2001 DATE OF JUDGMENT: 12/20/2002

APPLICANT Mr S Crawshaw SC and Mr A A Hatcher of Counsel Solicitors: Jones Staff & Co (Mr J Morrow)

LEGAL REPRESENTATIVES: RESPONDENT Mr R Reitano of Counsel Solicitor: Mr M N Holmes Court & Legal Services NSW Police Service (Mr I Ball)

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: WRIGHT J, President Friday 20 December 2002 Matter No IRC 3232 of 2001

THE POLICE ASSOCIATION OF NEW SOUTH WALES v THE COMMISSIONER OF POLICE

Application by the Police Association of New South Wales for declaratory relief under s 154 of the Industrial Relations Act 1996

1 These proceedings involve a construction issue concerning the pay of a police officer, Senior Constable Barry Griffiths, relating to the correct salary payment he should have received for a period of suspension from duty between 1996 and 1999. His trade union is the applicant in the proceedings. The respondent Commissioner's varied and onerous responsibilities will be assisted if he knows whether the decisions taken, or taken on his behalf, were correct. The proceedings also show the utility of the Court having power to grant declaratory relief. 2 On 11 May 2001 the Police Association of New South Wales, a registered industrial organisation of employees, filed an application for declaratory orders pursuant to s 154 of the Industrial Relations Act 1996. Declarations sought 3 The declarations sought were: 1. A declaration that the purported suspension of Constable Barry Griffiths, a member of the applicant, from his office in the Police Service of New South Wales during the period 24 May 1996 to 8 March 1999 was not a suspension with or without pay in accordance with clause 40(1) of the Police Service Regulation 1990. 2. A declaration that the ten percent salary loading payable to Constable Griffiths as an officer of the Police Service of New South Wales must form part of his pay for the purpose of any suspension of him from office with pay under clause 40(1) of the Police Service Regulation 1990.

The applicant also sought an order that its costs be paid by the respondent. 4 The substantive grounds upon which the applicant moved for relief were: 1. Constable Griffiths was purportedly suspended with pay by the respondent for the period 24 May 1996 to 8 March 1999, after which he was returned to duty. 2. Constable Griffiths was in receipt of his base salary whilst on suspension, but did not receive all components of his pay which he would have received had he not been working. 3. The power to suspend an officer with pay does not give the respondent the discretion to determine what payments should be received by an officer whilst on suspension, or to reduce an officer's pay. 4. There is a dispute between the applicant and the respondent with respect to the entitlements to pay of an officer who has been suspended with pay. This dispute ought be resolved in the public interest, by the granting of the declarations sought.

and the following particulars were provided: 1. Police officers whilst on duty are paid a 10 per cent loading for work performed on weekends, shift work, recall to duty and other incidents of employment pursuant to the provisions of the Crown Employees (Non-Commissioned Police Officers - 1998) Award, in addition to their base salary. 2. Under clause 40(1) of the Police Service Regulation 1990, the respondent is empowered to "… suspend the officer from office (with or without pay) …". 3. Constable Griffiths was purportedly suspended with pay pursuant to clause 40(1). 4. Constable Griffiths was paid his base salary whilst on suspension, but not the additional 10 per cent loading. 5. The respondent has subsequently rejected claims made on Constable Griffiths' behalf for payment of the 10 per cent loading for the period of suspension. Factual background 5 The only evidence read in the proceedings was an affidavit sworn by Constable Griffiths on 24 July 2001. He is a member of the Association referred to in the declarations sought and in the grounds and particulars in support of those declarations. Constable Griffiths' evidence was accepted by the respondent as accurately setting out the factual circumstances relevant to the claim for relief. He was not required for cross-examination. Exhibits tendered will be referred to where relevant in the subsequent factual consideration. They included the awards relevant to the proceedings. That is, the Crown Employees (Non-Commissioned Police Officers) Awards made or varied on 13 December 1979 (published (1982) 225 NSWIG 395), 30 August 1983 (published (1984) 233 NSWIG 623), 18 February 1992 (published (1992) 271 NSWIG 539), 21 February 1997 (published (1997) 302 NSWIG 281) and 21 November 1997 (published (1998) 305 NSWIG 129). Also in evidence was the decision of Mills CC of 30 January 1987 concerning the variation to the award as to on call allowance. Mills CC made the decision as the Chairman of the relevant conciliation committee. 6 Constable Griffiths' evidence was that he became a member of the Police Service on 22 January 1993 and that on 18 June 1996 he was suspended from duty with pay. At the time of the suspension he was classified as a Constable Level 4 under the Crown Employees (Non-Commissioned Police Officers) Award. A copy of the notice of suspension served on Constable Griffiths on 18 June 1996 was annexed to the affidavit. This document was titled "Suspension from Office with Pay" and was signed by G E Schuberg on 29 May 1996 in his capacity as Assistant Commissioner (Professional Responsibility) of the New South Wales Police Service. Somewhat surprisingly, given that the regulation at the heart of the present proceedings was in force at the relevant time, the notice does not refer to the regulation but rather to the suspension occurring under a document, which is not in evidence, which appears to be entitled "The Premier's Policy on 'Suspension of Public Employees From Duty' ". The relevant extracts from the notice of suspension are as follows (certain of the text has been emphasised because of its particular relevance): The Premier's Policy on 'Suspension of Public Employees From Duty' provides a number of options to be considered when an employee is under criminal or internal investigation and it is inappropriate for the employee to continue in their usual duties. Whilst the first option is the placement of the employee on alternative duties or duties at another location other options also include suspension from office with pay, suspension without pay and direction not to attend work. The policy states that the Chief Executive may suspend the employee from duty with pay "where it considered that … having the employee remain at work would be detrimental to the effective running of the agency." It is advised that you are being suspended from office with pay under those provisions until such time as your conduct is determined . The date of this suspension from office with pay will be effective from the date on which you are notified and handed a copy of this document . Action will then be taken to notify the Police Accounts Branch of your suspension from office. The instructions relating to your suspension are: … · You will not be paid any allowances from the date of suspension . · During the suspension period, you will not accrue annual, extended or sick leave. · Should you be recalled to duty during the suspension period, you are to report the circumstances of the recall, in order that consideration can be given to payment of appropriate remuneration. This recall may include attendance at court to give evidence. … · Should you be subsequently re-instated to full duty following the period of suspension, consideration will then be given to re-crediting all normal leave entitlements which would have otherwise accrued. 7 The Constable's evidence also refers to the lifting of his suspension. On 22 January 1999 he met with Superintendent R J Myatt and at this meeting the Superintendent informed him that the suspension would be lifted. He subsequently received a letter from Superintendent Myatt dated 2 February 1999 and then after that also received a letter from Regional Commander K E Moroney confirming that the lifting of the suspension had been approved. Mr Moroney's letter was dated 5 January 1999. Copies of these letters were also annexures to Constable Griffiths' affidavit. However, nothing appears to turn upon their terms, other than perhaps certain of the text of the first letter under headings relating to leave and salary entitlements, which were in these terms: LEAVE ENTITLEMENTS Your leave entitlements (annual, extended and sick) all accrued whilst you were on suspension. On resumption of your duty arrangements will be made to credit your leave balances with that accrued leave. SALARY ENTITLEMENTS At times of 'suspension on pay' an officer is paid a base salary. You are advised that on resumption of duty you may apply to the Industrial Relations Directorate (NSW Police Service) for payment of the additional amounts above the base salary for the period of your suspension. Additionally, within six months of your suspension being lifted, you are advised to meet the criteria of the Computer Assessment Scheme (EAS) of the Mandatory Continuing Police Education (MCPE) Program. In this way you will qualify for increments you would have been entitled to but for your suspension.

Constable Griffiths returned to substantive duties on 4 April 1999 having attended a four week Rejoinee Course at the Goulburn Police Academy which commenced on 8 March 1999. 8 In early 2000, Constable Griffiths received a letter dated 13 January 2000 from the Acting Manager, Professional Development Centre (Policing) of the New South Wales Police Academy, Goulburn, recommending that he be promoted to the rank of Senior Constable and that in accordance with the relevant departmental policy the recommendation included a recommendation that the promotion to Senior Constable be calculated from the constable's increment date, namely 20 January 1998. Formal service wide notification of this promotion occurred by notice published in the Police Service Weekly on 12 June 2000. 9 There was detailed evidence concerning Constable Griffiths' income both before, during and subsequent to the suspension in the following terms (the annexures have not been included): 11. Immediately before my suspension on 18 June 1996, my regular income from the Police Service comprised my basic wage and a 10% loading under the Award (the Loading). 12. I received the Loading regardless of what shifts I worked or whether I worked on weekdays or weekends. On my pay slips, the Loading was included as a part of my "Base Pay" as listed on the pay slip. Annexure BG-6. to this affidavit is a copy of the pay slip I received for the period ended 13 June 1996, that is, the period immediately before I was suspended. 13. While I was suspended on pay, I did not receive the Loading. I knew this because the Classification shown in the "Salary Entitlement" section of my pay slip changed from saying "Constable Level 4" to "Unload Constable Level 4". Annexure BG-7. To this affidavit is a copy of my pay slip for the period ended 27 June 1996. This was the first pay slip I received after I was suspended. 14. Annexure BG-8. To this affidavit is a bundle of documents containing the pay slips I still have in my possession for the rest of the suspension period, from the period ended 11 July 1996 until the period ended 13 May 1999. 15. I did not start receiving the Loading immediately after the suspension was lifted and I returned to work on 8 March 1999. Annexure BG-9. To this affidavit is a copy of the pay slip I received for the period ended 27 May 1999. This was the last pay period in which the classification shown in the Salary Entitlement section of my pay slip read "Unload". I was not on suspension with pay for any part of this period. 16. The next pay slip I received, however, indicated that I had started to receive the Loading again. Annexure BG-10. To this affidavit is a copy of the pay slip I received for the pay period ended 10 June 1999. 17. I have received the Loading as a part of my pay since that date, regardless of what shifts or days I have worked. 18. An application was made to the Police Service on my behalf seeking payment of the Loading for the suspension period. My solicitors subsequently informed me that the Service rejected this application. 10 It may be observed that this evidence refers to the witness's understanding that he was not, while suspended, "on suspension with pay for any part of [the] period". Although it might be readily understood why the witness states that this was his view of the situation there must be doubt that this is a correct statement of the legal position. This aspect shall be referred to again subsequently. It is sufficient to note here that the real issue is not whether Constable Griffiths was suspended "with pay", because the evidence makes plain that he was (plainly, he was not suspended "without pay"). Rather, the issue is whether, in a situation where he was suspended "with pay", he was paid in accordance with the requirements of the relevant regulation or the applicable requirements of the relevant award provisions, or perhaps the relevant requirements of both instruments.

Relevant award provisions 11 The award provisions relevant to the present application are provisions of the Crown Employees (Non-Commissioned Police Officers) Award made on 13 December 1979 by Dey J: see (1982) 225 NSWIG 395, as varied by Bauer J on 30 August 1983 (1984) 233 NSWIG 623. Although rates of pay have changed over time, the key award provisions are the salaries provision in clause 3 and the provision as to salary loading provided by clause 4. The 1979 award contained a salaries clause and the salary loading clause was inserted by a variation in 1983. It is not necessary to set out the whole of clause 3, Salaries, except to note that the salary rates and increments for the various ranks of Constable and Sergeant in clause 3(i) of the award were prefaced by these words: Subject to the Police Regulation Act, 1899, and any rules or requirements thereunder, an officer shall according to his rank and years of service, be paid a salary not less than the following …

and that clause 3(iii) provided: (iii) New South Wales Police Air Wing - Officers appointed to the positions set out hereunder shall, for the duration of such appointment, be paid in lieu of the provisions of subclause (i) of this clause and clause 4, Loading, of this award the following salaries: 12 Clause 4 provided: 4. Loading An officer shall, in addition to the salary prescribed in subclause (i) of clause 3, Salaries of this award, be paid an allowance calculated to the nearest dollar, at the rate of 10 per cent of such salary. The allowance being a loading for work performed on weekends, shift work, recall to duty and other incidents of employment other than those covered elsewhere in this award and Agreement No. 2396 of 1982 made between John Patrick Ducker, on behalf of Her Majesty the Queen, and the Police Association of New South Wales. 13 The provisions of clause 3(iii) as to the Police Air Wing, which illustrated a circumstance in which the salary and loading is aggregated, or is to be considered as aggregated for relevant purposes, has a parallel in clause 5 of the award, which is in the following terms: 5. Provision of Quarters The combined sum of the salary prescribed by clause 3, Salaries, and loading prescribed by clause 4, Loading, of this award, is inclusive of an amount equivalent to 3 per centum of such combined sum as an allowance in lieu of quarters. Officers provided with quarters shall have deducted from the sum of salary and loading prescribed, an amount at the rate of 3 per centum per annum of such sum.

This provision also indicates the apparent appropriateness of aggregating, or treating as aggregated, the salary provided by clause 3 and the loading provided by clause 4 for relevant purposes. 14 The evidence as to subsequent awards or award variations does not disclose any material changes. For example, the February 1992 variation made by Sheils CC referred to the 1990 statute rather than the Police Regulation Act 1899 and fixed salaries by reference to a schedule of "Common Salary Points" rather than by directly specifying annual salaries. The award made by Bauer J on 21 November 1997 was arranged in a different format to coincide with changes in Registry practice. However, apart from the salaries and loadings (Clauses 4 and 6 respectively) appearing in a schedule to the award, there was no change of present significance. 15 Clauses 7 and 8 of the 1997 award deal respectively with "Special Duties Allowance" and "On Call Allowance" and provide for payments "in addition to the salaries prescribed in Clause 4, Salaries, and Clause 6, Loading" of amounts to officers entitled to be paid such allowances or amounts pursuant to nominated specific purpose awards made, respectively, in 1993 and 1987. 16 The decision of Mills CC which resulted in the making of the 1987 specific purpose award was also relied on. As well as making clear that the new award entitlements arising from it were only available to officers who were in fact the subject of "recall to duty" requirements, the decision provides the following useful discussion of award history including consideration of the way in which the loading developed and was applied and paid. It will therefore be seen from all of these documents that the items for which the allowance of 10 per cent loading is made refers to work performed on weekends, shift work, recall to duty and other incidents of employment. This, of course, has led to different interpretations relating to the loading by the two parties. It is certainly a matter which has been the subject of a deal of submission before the conciliation committee and one which has not adequately been answered to my satisfaction by either party. For example, there is agreement that the loading covers the general situation of weekend work.

There is agreement between the parties that shift work is provided for within the agreement. Insofar as it is covered in the loading, it is accepted that it is on an averaging basis and that the loading whilst paid to all non-commissioned officers, the disability of shift work is not encountered by all non-commissioned police officers. Similarly there is agreement that the shift penalties are the same for week days as weekend work and to that extent there is some coverage or additional payment for weekend work. Again though, this is on an averaging basis being applied to all officers whether or not they encounter that disability . (pp 9 - 10, emphasis added)

Mills CC later observes in the decision that: For reasons which will be elaborated upon later, I have formed the view that the loading currently contained in the agreement and award comprehends a situation of all non-commissioned police officers being subject to recall; however, I am extremely doubtful that that allowance comprehends the situation of non-commissioned police officers who are rostered on call and subject to all of the requirements and limitations upon their private lives referred to above. (p 13) 17 The observations cited from the decision of Mills CC do no more than confirm the preliminary view I had reached, in any event, as to the meaning of the award clause as to "Loading" based on the literal or plain meaning of the words used in it. The Statutory and Regulatory Framework 18 As noted earlier, the issue in these proceedings is the interpretation and application of clause 40 of the Police Service Regulation or perhaps more correctly the interpretation and construction of this provision - the distinction being that the former concept involves ascertaining the meaning of the relevant words and the latter refers to deciding their legal effect; see, for example, The Life Insurance Company of Australia Limited v Phillips (1925) 36 CLR 60 at 78 per Isaacs J as cited by Sharkey P in Robowash Pty Ltd v Hart (1998) 78 WAIG 2325 at 2329. 19 Clause 40 of the Regulation was in the following terms at the relevant time:

40 Suspension (1) If the Commissioner has reasonable cause to believe that the conduct of a police officer has been such as to justify disciplinary action or 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. 20 As observed in the applicant's submissions, the source of power for the making of clause 40 is s 219 of the Police Service Act 1990 which provides a general and also a particular power to make by regulation a provision in the above terms and specifies that the power to make such a provision is the power to make a regulation providing for suspension "with or without pay". Section 219 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. … 21 Before turning to the overall context in which clause 40 occurs, a preliminary consideration of the provision raises the question whether the intention in providing authority to suspend an officer from office "with or without pay" is an intention to provide a basis for suspension, at least in relation to "pay", that is limited to an "all or nothing" basis. In other words, whether the intention of providing power to suspend on the bases provided may be no more than a power to suspend on one of two alternative bases. In this situation the first basis is without pay - that is, with no payment. The alternative basis is that there would be no alteration as to the officer's pay. Some confirmation that this may be the distinction drawn as to the types of suspension available under sub-clause (1) of clause 40 may appear in sub-clause (3) which refers to the officer's "suspension from pay". The use of these words seems to indicate that the power to suspend is a conferral of power to suspend on two alternative and diametrically opposed bases. One kind of suspension is suspension from office coupled with a suspension from pay; whereas the other suspension is a suspension from office without any suspension " from pay" - that is, without any suspension or cessation of the officer's pay. 22 If this be the proper construction of clause 40(1), it would appear, subject to the existence of the relevant power, issues of discretion and the precise form of the orders, that the declarations sought by the applicant should be made. It is, however, appropriate to notice even at this stage that the situation is complicated somewhat by the reference in clause 40(3) of the Regulation to the Commissioner being empowered to "approve a maintenance payment of not more than 100 per cent of the salary of the officer at the time of the suspension" in circumstances where the Commissioner is satisfied that the officer or officer's family will suffer undue hardship "because of the suspension from pay". It may be that the "drafter" of the provision is, in the first extract quoted, drawing a distinction between "pay" and "salary". However, it may be that this provision merely demonstrates that the reference to "with or without pay" in clause 40(1) is not intended to be a reference to levels of, or limitations upon, payments to be made but only that there are two types of suspension available. 23 Sub-clauses (2) and (3), respectively, of clause 40 use different phrases to refer to apparently identical notions. Sub-(2) refers to "suspension without pay" whereas sub-clause (3) uses the phrase "suspension from pay". This raises doubt whether the provision has been drafted with close regard to fine distinctions in language; for example, whether a distinction was in fact being drawn between the two phrases. If this possibility is correct, it means that the phrase "suspension without pay" is intended to synonymous with and equivalent to the phrase "suspension from pay" which, in turn, tends to suggest that "suspension with pay" is essentially the opposite of "suspension from pay". That is, the suspension from duty is not intended to involve any change in the situation as to payment. 24 Reference may now be made to the other provisions of the Police Service Regulation which refer to the concepts requiring consideration in these proceedings. That is, the concepts "with pay" and "without pay" and also to the possibly cognate concept of "full pay", which figures predominantly in the respondent's submissions. 25 Clauses 71 to 74 of the Police Service Regulation deal with the question of extended leave. Clause 72 sets out the various entitlements available to an officer depending on years of service. The entitlement after 10 years service is illustrative. At that stage an officer is entitled "to leave for 2 months on full pay or 4 months on half pay". 26 Clauses 74A to 80 deal with the question of annual leave. Clause 75 sets out the various entitlements by referring to the usual rate of accrual of "annual leave on full pay" occurring "at the rate of 30 working days per year". The entitlements for commissioned officers, officers rostered for ordinary hours on Sundays or public holidays, and also for officers attached to Police Stations within the Western Division or the Central Division are somewhat different. Clause 79(1) provides that: Annual leave accrues in respect of any period a police officer is on extended leave on full pay, but during one-half only of any period of extended leave on half pay. 27 Adoption, maternity and parental leave are dealt with in clauses 85 to 91. Adoption leave may be granted and taken on various bases including full-time, part-time or partly full-time and partly half-time. In limited circumstances, as to which see clause 86(6), an officer has an entitlement to payment for adoption leave "at her ordinary rate of pay", but otherwise adoption leave "is to be granted without pay": see clause 86(5). Maternity leave is available on conceptually similar bases: see clause 87 and as to payment or non-payment of leave see sub-clauses (8) and (9) thereof. Clause 88 deals with parental leave and sub-clause (5) of that clause provides that parental leave "is to be granted without pay". 28 Accrual of leave while on maternity leave or adoption leave is dealt with by clause 89. Incremental progression whilst on those types of leave, and also on parental leave, is dealt with by clause 90. Those provisions are in the following terms: 89. Accrual of leave while on maternity leave or adoption leave (1) For the purpose of accrual of annual leave by an officer: (a) any period of maternity leave or adoption leave in respect of which payment was made at the rate of full pay is to be counted as service, and (b) half of any period of maternity leave or adoption leave in respect of which payment was made at the rate of half pay is to be counted as service. (2) For the purpose of accrual of any leave (other than annual leave) by an officer, any period of maternity leave or adoption leave in respect of which payment was made (whether at the rate of full pay or half pay) is to be counted as service. (3) For the purpose of accrual of any leave by an officer, any period of maternity leave, adoption leave or parental leave taken as leave without pay is not to be counted as service except as provided by Division 2. 90. Incremental progression while on maternity leave, adoption leave or parental leave For the purpose of payment of any increment to an officer: (a) a period of maternity leave or adoption leave in respect of which payment was made at the rate of full pay or half pay is to be counted as service, and (b) a period of any maternity leave, adoption leave or parental leave without pay is not to be counted as service.

Interestingly, there are references in those clauses to leave being taken at "half pay" notwithstanding that there appears to be no right under the relevant entitlement provisions to take leave on that basis. 29 Clause 93 provides a discretionary entitlement to short leave. The clause refers to the Commissioner's power to grant short leave on "full pay" and provides certain maximum amounts of "short leave on full pay". Clauses 94 and 95 deal extensively with the grant of leave without pay to various types of officers and the extent to which such leave is to be counted as service for the purposes of other kinds of leave, qualifications for promotion, periods of probation etc. These clauses also provide that leave without pay may be granted on either a full-time or part-time basis. 30 Sick leave is dealt with in clauses 96 to 107. Accrual provisions refer to sick leave "on full pay" accruing at the relevant rate. Clause 99(3) provides that in certain circumstances of receipt of payments under the Workers Compensation Act 1987, an officer "may … be paid an amount representing the difference between the amount of compensation payable under that Act and the ordinary rate of pay of the officer, but sick leave equivalent to the amount of the difference so paid is to be debited against the officer." 31 Clause 109 deals with military leave. The clause enables the Commissioner to grant to an officer "military leave on full pay" (a specified number of calendar days dependent upon the particular military force of which the officer is a member). 32 Clause 110 provides special leave for certain purposes, such as attendance at examinations. The words used are "special leave on full pay". Special leave for attending as a witness at court is dealt with in clause 111. Depending upon the basis upon which the officer is subpoenaed or called to give evidence, the entitlement may be "special leave on full pay", "annual leave on full pay" or "leave without pay". 33 There are a number of provisions of the Police Service Act which have apparent relevance. For example, in s 45 "Definitions" the definition of "employment benefit" has as one of its meanings "entitlement of an executive officer to approved leave with pay". Section 46, which deals with "Monetary remuneration and employment benefits for executive officers" provides in sub-section (6), that an executive officer is entitled to be paid an amount equivalent to the cost of part of any entitlement "to take annual or extended leave with pay" in certain specified circumstances. Section 56 concerns persons who were engaged in the public sector when appointed to an executive position for the first time and who had "a right to accrued extended or annual leave with pay" immediately before the appointment. Such persons are entitled to be paid, instead of taking the leave, the money value of that leave as a gratuity, calculated at the person's rate of pay immediately before appointment to the executive position. 34 Section 92 deals with members contesting State elections. Sub-section (3) provides: Unless the member is entitled to leave with pay (and duly applies for such leave), any leave of absence under this section is to be leave without pay . (emphasis added) 35 Section 93 deals with re-appointment of members of the Police Service who resign to contest Commonwealth elections. Sub-section (3) of that section provides, inter alia , that a member of the Police Service is, on re-appointment under the section, to be taken to have been "on leave without pay during the period between resignation and re-appointment". 36 Section 186 is entitled "Appeal to GREAT relating to leave when hurt on duty" and provides, inter alia, that a: police officer may appeal to GREAT against a decision of the Commissioner to grant or refuse leave of absence on full pay to the police officer during any period of absence caused by that officer being hurt on duty. (emphasis added) 37 It may be observed here that the statutory scheme (in the sense of the scheme to be found in the relevant provisions of the regulation and of the statute) presents a veritable "patchwork" of provisions which sometimes appears, by the use of different words or phrases, to be making or drawing clear distinctions. However, on closer examination, no clear or consistent pattern of distinction seems to be drawn, nor does it appear that differences or distinctions in meaning are necessarily intended by, or to be inferred from, the use of different phrases or words. 38 The reasonable inference from this situation is that the terms of the regulation as they stood at the relevant time represent a consolidation, at least in a practical sense, of provisions which had been varied or added over many years presumably by "drafters" who gave varying importance to precise drafting. As such, the situation appears to come within the approach described by Priestley JA as "change and accretion" in Murphy v Farmer (1987) 87 FLR 149, an approach which was in substance approved in the subsequent proceedings in the High Court. Priestley JA speaking for the Court of Appeal in Murphy v Farmer said (at 151), as to provisions of the Customs Act 1901 (Cth): Secondly, the history and forebears of ss 229 and 234 show that they have reached their present form by change and accretion without great attention being paid to any idea of making all their parts fit neatly into an obvious scheme requiring exact harmonising of language. … In referring to the change and accretion in ss 229 and 234 I have in mind that the present form of those sections is the product of a long period of evolution, some of which can be traced through … The sections I have referred to in the earlier Acts all seem to raise problems of construction similar to that in the present case and changes and additions to the legislation all appear to have been made without particular attention being given to the present point. Further, although there is, in a general way, a fairly regular use of terms in the various sections, there does not seem to have been any attempt at a high degree of consistency in the use of terms such as false, untrue or misleading so far as their objective and subjective senses are concerned. 39 When the matter was dealt with in the High Court, the majority of the Court ( Dean , Dawson and Gaudron JJ) said: Murphy v Farmer (1988) 165 CLR 19 at 27: [A]s Gibbs J commented in Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1 at 10, the presumption that a word is used with a uniform meaning in a statute is not one "of very much weight … it all depends on the context". In the same case (at 15), Mason J pointed out that the "presumption readily yields to the context". The presumption of a consistent use of the word "false" is, in any event, of little assistance in relation to the construction of a statute such as the Act where, as Priestley JA pointed out in the Court of Appeal, there does not appear to have been any attempt by the legislature to achieve a "high degree of consistency" in the use of terms such as false, untrue and misleading. 40 It follows that it may be erroneous in approaching the construction of Clause 40, and the particular phrases in it, to rely too greatly on comparisons or contrasts between words and phrases and the way they may be used in other provisions of the regulation or the statute. Principles to be applied 41 Although the relevant principles of construction may be thought to be somewhat trite, it may be appropriate nevertheless, in view of the issues between the parties, to refer to the major principles and also the approach which should be adopted because of the way in which the issues are posed in the present proceedings. The first of the general principles is usefully stated in the joint judgment of Isaacs and Rich JJ in Metropolitan Gas Co v Federated Gas Employees' Industrial Union (1925) 35 CLR 449 at 455 where their Honours said: [E]very passage in a document must be read, not as if it were entirely divorced from its context, but as part of the whole instrument.

See also Scott v Federal Commissioner of Taxation (1966) 117 CLR 514 at 524 and K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315 where Mason J observed: However, to read the section in isolation from the enactment of which it forms a part is to offend against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, at pp 304, 319 - 320; Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436, at pp 461, 473). Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise . In Prince Ernest Augustus of Hanover , Viscount Simonds said (at p 461): "... words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use 'context' in its widest sense ... as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern the statute was intended to remedy."

In Re Bidie [1948] 2 All ER 995, at p 998 Lord Greene M.R. said: "In the present case, if I might respectfully make a criticism of the learned judge's method of approach, I think he attributed too much force to what I may call the abstract or unconditioned meaning of the word 'representation'. ... The real question which we have to decide is: What does the word mean in the context in which we find it here, both in the immediate context of the sub-section in which the word occurs and in the general context of the Act, having regard to the declared intention of the Act and the obvious evil that it is designed to remedy?"

The instances of general words in a statute being so held to be constrained by their context are legion: e.g. Ross v The Queen (1979) 141 CLR 432, at p 440 and the cases collected in Cross, Statutory Interpretation (1976), pp 44 - 56. (emphasis added) 42 Also, as Dixon CJ observed in Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397: [T]he context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.

Although the observation of Dixon CJ is true of many cases involving disputed questions of construction, it is particularly apposite in the present proceedings where it is important to ensure that any conclusion as to the meaning of the relevant words gives full weight to the context in which the words appear and that any meaning given does not artificially or inappropriately depend on considering the words in the abstract. 43 A useful consideration of relevant approaches in this respect is provided by the decision of a Full Bench of the Australian Industrial Relations Commission in Keith Miller & Sons Builders Pty Limited v Flemming (1999) 91 IR 399 at 406 - 407 where it was said (again, the emphasis is mine): [30] We accept what has been said in previous Commission decisions regarding the scope of the word "remuneration". But that acceptance does not determine the matter before us. It is not sufficient to consider the meaning of "remuneration" in abstract, it must be considered in the context in which it appears .

[31] The meaning of a word or a phrase is to be derived from its context. As Stamp J put it in Bourne v Norwich Crematorium Ltd [1967] 1 WLR 691 at 696: "Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases, and then put back again into the sentence with the meaning which one has assigned to them as separate words, so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language."

[32] A word of wide possible connotation may be limited by the context in which it appears. (As Barwick CJ said in Taylor v Public Service Board (1976) 10 ALR 211 at 215: "Their meaning and operation must be read with and accommodated to the rest of the section". Also see Ross v R (1979) 25 ALR 137 at 145; Prior v Sherwood (1906) 3 CLR 1054 and Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 at 53 per Toohey and Gaudron JJ.) … 44 Later passages in that decision illustrate the way in which the Full Bench considered that varying contexts could lead to similar words or phrases having a different meaning and effect, even in the one instrument or document, because of the need to consider the words in their specific context. The following passages occur in the decision at 410 - 411:

[60] Further, the idea that one simply aggregates irregular overtime payments made in the previous twelve months; renders the words "immediately before termination" in s.170CC(3)(b), nugatory. We do not think that could have been Parliament's intention. All words in a statute must prima facie be given some meaning and effect: Beckwith v R (1976) 12 ALR 333 at 337 per Gibbs J.

[61] It follows that in our view payments in respect of irregular overtime do not form part of the "rate of remuneration applicable to the employee immediately before termination". [62] Nor could it reasonably be suggested that one simply annualises any overtime payment made in the week immediately prior to termination. Such an approach would lead to capricious and unreasonable results and we are entitled to take into account the consequences of giving a particular meaning to a statutory provision: Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 35 ALR 151 at 169 - 170 per Mason and Wilson JJ. As Gibbs J said in Public Transport Commission of NSW v Murray More (NSW) Pty Ltd (1975) 6 ALR 271 at 282: "where two meanings are open … it is proper to adopt the meaning that will avoid consequences that appear irrational and unjust".

[70] Similarly, the interpretation of "remuneration" in the former Act does not determine the meaning of that word in s.170CC(3)(b). The statutory contexts are quite different. In the former Act the Court was construing the meaning of "remuneration" in the context of determining a statutory ceiling applicable to the assessment of compensation. Our task is to ascertain its meaning in s.170CC(3)(b) for the purpose of determining whether an employee is excluded from the jurisdiction. Given the beneficial nature of Division 3 of Part VIA it is to be expected that "remuneration" in the context of assessing compensation would be liberally interpreted and that any exclusion from the jurisdiction would be strictly construed : see Rose v Department of Social Security (1990) 21 FCR 241 at 244; Mann v State Rail Authority [1999] FCA 273, unreported 24 March 1999 per Ryan , Moore and Marshall JJ. (emphasis added) 45 Another useful example of this approach, where careful regard was paid to the importance in interpretation of the context in which the relevant words appear and of having regard to the purpose of the provision, is a decision of the President of the Queensland Industrial Relations Commission, when as Chief Industrial Commissioner, his Honour decided Nunn v Linde Materials Handling Pty Ltd (1999) 160 QGIG 212. Hall P there considered the meaning and application of clause 34(2)(b)(iii) of the Workplace Relations Regulation 1997 (Qld) which provided that the unfair dismissal provisions of the legislation did not apply to an employee "whose annual remuneration immediately before the dismissal [was] more than $64,000". The approach adopted by his Honour, as indicated earlier, usefully exemplified the approach which should be adopted here, and is found in the following extracts from the decision (at 213): But there is no conceptual difficulty in inquiring whether a reasonable person acquainted with all relevant circumstances would, on the day immediately before a dismissal, have said that an employee had an annual remuneration in excess of $64,000. There may be difficulty in assessing whether the employee fell into the category of those whose remuneration exceeded $64,000 per annum. But there is no conceptual difficulty with the proposition and it should, I think, be embraced. … The process by which the Commonwealth statutory phrase "rate of remuneration" came to be construed as total remuneration received over a twelve-month period expressed as an annual rate is described, and I rather think criticised, in the same decision. [ Bell v Macarthur River Mining Pty Ltd , Australian Industrial Relations Commission, Print Q1629] But that is by the by. The obligation is to construe s 34(2)(b) of the Workplace Relations Regulation 1997. I quite fail to see why one may not look forwards as well as backwards. It seems to me to be perfectly reasonable to say of somebody dismissed that on the previous day he was employed at annual remuneration in excess of $64,000 if he was employed under a contract stipulating an annual rate of $64,000 even though the contract had only run for two months. It seems to me that it would be difficult to say of a person dismissed yesterday and working under a contract stipulating salary of $50,000 per annum that he is employed at an annual remuneration in excess of $64,000 because, up until two weeks earlier, he had been employed under a contract stipulating a salary of $250,000 per annum. One should take a global approach and remember that the task is not to identify with precision an Applicant's annual remuneration but to express a view upon whether an Applicant is to be properly characterised as having an annual income in excess of $64,000 on the day before dismissal.

A similar approach was taken in the recent judgment of a Full Bench of this Court in Langan v Ceramiclab Pty Limited (2000) 97 IR 80 at [13]. 46 Indeed, as McHugh JA said in a judgment relied upon by both parties, Rogan v The Director-General of Technical and Further Education (1987) 10 NSWLR 348 at 350, as to the construction of the phrase "decision to reduce the pay of the employee" in s 23(1)(b) of the Government and Related Employees Appeal Tribunal Act 1980: I think that it invites error to break up the terms of s 23(1)(b) and analyse the elements of decision, reduction and pay. A decision to reduce pay is a compound conception. 47 Finally, on this aspect the Chief Justice of New South Wales has recently dealt with the matter extra-judicially in the 1999 Sir Ninian Stephen Lecture under the rubric "Context". His Honour observed: The contemporary Australian approach to construction is the same as Judge Learned Hand once expressed: "Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of the surest indexes of a mature developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning" ( Cabell v Markham (1945) 148 F2d 737 at 739). A good short hand description of this approach is "literal in total context" (E. Driedger Construction of Statutes (2nd ed, 1983) at 2; Barnes "Statutory Interpretation, Law Reform and Sampford's Theory of the Disorder of Law-Part One" (1994) 22 Federal Law Review 116 at 134). Wherever general words must be construed, it is essential for the interpreter to bear in mind that a statute has a context, it has a background and it reflects assumptions as to the circumstances in which it will operate. The words of a statute do not exist in limbo ( Morris v Beardmore [1981] AC 446 at 449 per Lord Edmund-Davies). … As Mahoney JA has put it: "It is part of the ordinary process of legislative construction to qualify the generality of words" ( Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 at 279). In any such process, little assistance can be gained from previous cases on different statutes. This is because: "Everything depends upon the subject matter and the context" ( Hall v Jones (1942) 42 SR(NSW) 203 at 208 per Jordan CJ).

In 1906 Justice O'Connor in the High Court, immediately after his reference to the broader sense of the word "ambiguity" referred to above, quoted with approval the following passage from the third edition of Maxwell on the Interpretation of Statutes : "General words admit of indefinite extension or restriction, according to the subject to which they relate, and the scope and object in contemplation. They may convey faithfully enough all that was intended, and yet comprise also much that was not; or be so restricted in meaning as not to reach all the cases which fall within the real intention. Even, therefore, where there is no indistinctness or conflict of thought, or carelessness of expression in a statute, there is enough in the vagueness or elasticity inherent in language to account for the difficulty so frequently found in ascertaining the meaning of an enactment, with a degree of accuracy necessary for determining whether a particular case falls within it" ( Bowtell v Goldsborough Mort & Co Limited (1996) 3 CLR 444 at 457). (The Hon J J Spigelman : "Statutory Interpretation: Identifying the Linguistic Register" (1999) 4 Newcastle Law Review 1 at 4 - 8.) Preliminary conclusion 48 A consideration of the provision at issue in these proceedings in the light of the other provisions of the legislative and regulatory scheme, as exemplified by the earlier references to particular provisions, and when seen in the light of the authorities referred to, in my view demonstrates clearly that the issue between the parties will not be resolved by fine distinctions being drawn between the way in which the word "pay" or the phrases such as "with pay", "without pay" or "full pay" are used in the various provisions. It is clear that the drafting of the various provisions may not have involved close attention being paid to ensuring that possibly fine distinctions between various phrases were in fact intended to have any particular effect or any particular shade of meaning. No doubt particular provisions have come from various sources over the years and it is to be observed that the present statute and regulation are meant to serve a variety of purposes. For example, they deal with the statutory and regulatory framework and the provision of conditions of employment for two groups of officers and employees whose employment was drawn from two different statutory areas; namely the Police Regulation Act 1899 and the Public Sector Management Act 1998 (and its predecessors, the Public Service Act 1902 and the Public Service Act 1979). 49 Uninstructed by the submissions of the parties to which reference will shortly be made, an application of the principles of construction, keeping steadily in mind the mandate to ensure a rational and purposive result in the construction process, makes comfortably clear that the intention of the provision is to provide a power in the Commissioner to suspend officers from duty on two distinct bases. The first basis is "with pay" and the second "without pay". That is, in the latter situation, a suspension not only from office but a suspension "from pay", to use the words of sub-clause 40(3). The result of this construction is that suspension of the first type ("with pay") would be a suspension which left the pay situation, or the situation as to pay, of the officer intact, apart from those elements of pay which might by their very nature be episodic or subject to significant variation, such as payment for overtime. The loading provided by clause 4 of the award would thus continue to be paid in that situation. Utility of declaratory relief 50 It will be convenient to refer to the submissions of the parties to ascertain whether consideration of them leads to a different conclusion to that reached on a preliminary basis. However, before turning to those submissions, it is appropriate to note one other important consideration arising from the fact that the application here is an application for declaratory relief. No demur to the granting of such relief, at least in principle, has been raised by the respondent. I consider that the concession implicit in the respondent's approach is appropriate. There is undoubted power provided by s 154 of the Industrial Relations Act 1996 to grant the declarations sought. Section 154(1) provides: The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed. 51 There are a number of recent authorities of this Court which make plain the scope for and availability of appropriate relief provided by s 154 provision: for example, Atlantis Relocations (NSW) Pty Ltd v Department of Industrial Relations (Inspector O'Regan) (1997) 99 IR 125 at 126 - 127; Ford v SAS Trustee Corporation (2000) 98 IR 444 at 476; State of New South Wales (Department of Public Works and Services and Department of Education and Training) v WorkCover Authority of New South Wales (Inspector Page) (2000) 101 IR 131 at [20]; "A" v Commission for Children and Young People & Anor (2001) 107 IR 211 at 213 and Western Sydney Area Health Service v Gibson (2001) 109 IR 359 at 369. 52 It is also to be observed that the grant of declaratory relief is, by its very nature, discretionary. Nevertheless, I consider that it would be appropriate to grant declaratory relief whether I concluded that the proper construction of the relevant provision was consistent with the approach of the applicant or consistent with that advanced by the respondent. It is plain that there is a genuine issue between the parties as to the rights of Constable Griffiths which should be the subject of authoritative determination. In addition, the provisions in issue are of significance in the proper administration of an important area of public sector employment in this State. Although the relevant clause of the Regulation was varied in 1999 subsequent to Constable Griffiths' suspension, the amendment did not materially alter clause 40. Similarly, although the Police Service Regulation 1990 has been replaced by the Police Service Regulation 2000, that instrument contains a provision in relevantly similar terms to that considered in these proceedings. Similar issues were also the subject of declaratory relief granted by Spurling J of the Supreme Court in Chate v Commissioner of Police (1997) 76 IR 70. Applicant's submissions 53 The applicant's written submissions helpfully set out the essential elements of its approach in this way: 7. The relevant effect of clause 40(1) of the Regulation is to empower the Commissioner, in the prescribed circumstances, to suspend a police officer from office in one of two different ways - either with pay, or without pay. The provision, in conferring a power to suspend with pay, does not give the Commissioner a general discretion to determine the amount of pay which an officer will receive whilst on suspension. The words of clause 40(1) - in particular, the words "may suspend the officer from office (with or without pay)" - are not apt to describe any such general discretion. They describe two alternative and opposite types of suspension rather than a range of modes of suspension. It is clear that in the context of the provision that "pay" is referring to the pay attaching to the office from which the officer is to be suspended - not an amount to be determined by the Commissioner in his discretion. 8. The correctness of alternative constructions of statutory provisions may be tested against their results: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320 per Mason and Wilson JJ. If the power of the Commissioner to suspend an officer with pay under clause 40(1) carried with it a discretion to determine the amount of pay to be received by the officer whilst on suspension, that would mean that a suspension on half salary only, or even a suspension with the payment of a merely nominal amount, could be said to constitute a suspension with pay. This would [be] an absurd result, and one unlikely to have been intended. 9. The language of clause 40(3) is to be contrasted with that of clause 40(1). Clause 40(3) (together with clause 40(2)) gives the Commissioner the power to take specified measures to alleviate any undue hardship suffered by a police officer who is suspended without pay. Clause 40(3) in particular permits the Commissioner to approve a maintenance payment of not more than 100% of salary of the officer at the time of suspension. The words of the provision clearly give the Commissioner a discretion to determine, up to a specified limit, the amount of any maintenance payment to be made to an officer in the prescribed circumstances. Similar language could have been used in clause 40(1), but it was not. Furthermore, if the Commissioner did have the flexibility to determine the quantum of pay of an officer whilst suspended under clause 40(1), then clause 40(3) would be largely unnecessary. It is apparent that the purpose of clause 40(3) is to ameliorate the potentially harsh consequences of the exercise of the limited power under clause 40(1) to suspend either with or without pay. 10. The correct approach in this case is therefore to determine what elements of the remuneration attaching to the office from which Mr Griffiths was suspended can be said to fall within the word "pay". 11. The word "pay" is not defined in the Regulation, or in the Act. In its ordinary sense (as a noun), it relevantly means "payment, as of wages; wages, salary or stipend" (Macquarie Dictionary, 3rd ed., p.1579). "Remuneration" also means "pay" (Macquarie Dictionary, p.1802). 54 The applicant relied on judicial interpretations of the word "pay" where it has been held as capable of bearing wide meaning: for example, Rogan v Director-General of Technical and Further Education . It was said that the only relevant limitation which may apply to the word "pay" is that it is sometimes not regarded as apposite in relation to allowances designed to reimburse or indemnify for expenses: Bayley v Bayley [1922] 2 KB 227; Stuart-Robinson v Lloyd (1932) 47 CLR 482; and that: 14. The unqualified word "pay" is clearly wider in scope than the phrase "ordinary pay" and its equivalents. But even "ordinary pay", depending on it context, might be capable of encompassing the type of loading referred to in paragraph 2 above. For example, in Kezich v Leighton Contractors Proprietary Limited (1974) 131 CLR 362, it was held that payment for overtime which was ordinarily worked fell with[in] the scope of the phrase "ordinary wage or salary ... for ordinary hours". And in Registered Clubs Association of New South Wales v Australian Liquor, Hospitality and Miscellaneous Workers' Union, NSW Branch [2000] NSWIRComm 262 (14 December 2000, Glynn J), it was held that an award casual loading of 33 1/3 per cent fell within the expression "ordinary pay" as defined in the Long Service Leave Act 1955. 15. Therefore, on the ordinary meaning of the word, and as judicially defined, the "pay" of a police officer would include the 10 per cent loading referred to in paragraph 2 above. It is a regularly-paid allowance evidently intended to compensate police officers for the standard incidents of their employment. It does not reimburse or indemnify police officers for expenses incurred. 55 The applicant also argued that although clause 40(1) uses the word "pay" and clause 40(3) uses the word "salary", the latter term like the word "pay", is a word capable of bearing a broad meaning: Commissioner for Government Transport v Kesby (1972) 127 CLR 374 at 388 per Gibbs J. Thus, "salary" has been held to include shift penalties and regular overtime: Kesby at 388 - 9; and an allowance for skill: Metropolitan Water Sewerage and Drainage Board v Histon [1982] 2 NSWLR 720. In accordance with this approach the reference to "salary" in clause 40(3) would be capable of encompassing the 10 per cent loading referred to in the award. The word "pay" as used in clause 40(1) must be at least as wide in meaning as "salary" in clause 40(3). On the basis of the dictionary definitions and authorities relied on by the applicant it was submitted that an absurd result would result if "pay" had a narrower meaning than "salary". Further, it would, for example, mean that an officer suspended without pay under clause 40(1), but who then received (say) a 100 per cent maintenance payment under clause 40(3), would receive more remuneration than an officer who was suspended with pay under clause 40(1). 56 The applicant's submission concluded on this note in submitting that the Court should therefore grant the orders sought by the applicant: 19. The fact that a police officer on suspension does not perform weekend work, shift work, or recalls to duty whilst on suspension is not relevant to a consideration of whether a police officer suspended with pay is entitled to be paid the additional loading referred to in paragraph 2 above. A police officer on suspension does not perform any duties at all, but it of course does not follow that because of this fact a police officer who is suspended with pay should not receive any salary at all. The whole purpose in having a statutory power to suspend a police officer with pay can only be to allow the police officer to receive payment despite the fact that there is no performance of duties such as would normally be required in order to entitle the police officer to be paid. This proposition applies as much to the additional loading as it does to the base salary. 20. The pay attaching to the office from which Mr Griffiths was suspended included the additional 10 per cent loading. The Commissioner, having decided to suspend Mr Griffiths from his office with pay, did not have a discretion to withhold the payment of that loading. It follows therefore that: (i) The suspension of Mr Griffiths on the basis that he would receive his base salary but not his additional loading was not a suspension "with or without pay" in accordance with clause 40(1) of the Regulation; and (ii) Any valid suspension of Mr Griffiths with pay must involve payment to him of his additional loading. Respondent's submissions 57 The respondent submitted that, while the starting point for the interpretation of the word "pay" is its ordinary meaning, the ordinary meaning does not provide a great deal of assistance although it arguably favours the respondent's contentions. In addition to cases relied on by the applicant, for example Rogan v Director-General of Technical and Further Education and Metropolitan Water Sewerage and Drainage Board v Histon , the respondent referred to Mette v Howarth (1935) 53 CLR 55 where the High Court considered whether a lump sum payment payable under superannuation legislation upon the retirement of a public servant, was "pay" for the purpose of the Bankruptcy Act . In their joint judgment in that case, Evatt and McTiernan JJ said at 66: The word "pay" includes the remuneration granted to the holder of a rank or office in the case where he is relieved for the actual performance of the duties of the office. In this sense it includes the half pay of a military officer. A characteristic of a payment which answers the description "pay" is that the payee receives it on account of the occupancy of some office, rank or employment. 58 Accordingly, it was submitted that, even though in Rogan and Histon the court dealt with the concept of "pay" as being one that was wider than "salary" it is clear from the judgments that the comprehension of an allowance within the term "pay" is directly referrable to the performance of duties of the office or position. Thus, it is said (citing from the respondent's helpful written submissions): 13. In the present circumstances the payment made under clause 4 of the Award is a "loading for work performed on weekends, shift work, recall to duty and other incidents of employment other than those covered elsewhere in this Award and Agreement No. 2396 of 1982 made between John Patrick Ducker, on behalf of her Majesty the Queen and the Police Association of New South Wales". The allowance, properly characterised, is compensation for the inconvenience, disruption and other dis-amenities resulting from being required to perform duty in the circumstances identified in clause 4 of the Award. Like the special responsibilities allowance in Rogan the amount is not "pay" unless there is a performance of duty and the consequent suffering of the relevant inconvenience, disruption and dis-amenity. 14. Next, it is relevant that the expression "with … pay" is different from other terms that are used throughout the Regulation. In particular clauses 72, 75 and 97 of the Regulation all refer to "full pay". The use of this expression seems to connote a wider concept than the use of the word "pay" (alone) in its context in the Regulations. Clause 40(1), of course, provides for suspension on "pay" but not necessarily (apparently) on "full pay". The concept of "full pay", it is submitted, can only be wider if it is read to include all payments that would be made had the officer concerned been at work - such a phrase stands in distinction to "pay". There is otherwise no sound distinction between the two concepts within the Regulations. 15. In ascribing a meaning to the word "pay" in Regulation 40(1) the Commission should have regard to the scheme of legislative and award regulation that applied at the relevant time. Significantly both the Award and the Regulations dealt with terms and conditions of employment. 16. It is clear that putting aside the proviso to the commencement of clause 3 (which deals with salaries) the clause in question provides for the payment of an annual salary whilst a person remains an "officer". The clause is like the award clause that was considered in Gapes v Commercial Bank of Australia Limited (1979) 41 FLR 27. 17. Regulation 40 for which clause 3 of the Award is subject provides an exception to the payment of salary. 18. Note that the payment of the loading, the special duties allowance and the on call allowance are not "subject to the regulation" or expressed to be "subject to the regulation" - they are, as is submitted above, only payable when the conditions precedent to payment operate. Those clauses do not need to be "subject to … the regulations" for the purpose of suspension because they simply do not (and cannot) operate where an officer is suspended - contrast the position in respect of salary, absent a provision allowing suspension there would be no right to withhold salary from a person who remained an officer. 59 The respondent's submission concluded on the basis that the interpretation it advances: gives a real meaning as to why the payment of salary is expressed to be "subject to the regulations"; and that where there is no performance of duties there is no right to payment of the allowance provided for by clause 4 of the Award; the allowance therefore cannot come within the meaning of the word "pay" for the purpose of Regulation 40(1). The application should accordingly be dismissed. Meaning of the words "salary" and "pay" 60 It is necessary now to consider the submissions as to the meaning to be given to the related words "salary" and "pay". Not surprisingly, the judgments relied on which consider the meanings to be provided to these words are judgments dealing with the construction and application of various statutes which use the relevant word in a wide variety of different contexts. Care must therefore necessarily be taken to avoid giving the word a meaning which so depends on the context of the particular judgment that its subsequent application would exceed what is reasonably available. Notwithstanding these caveats it seems comfortably clear that the terms "salary" and "pay" are terms of wide import and that, again in general terms, the meaning of the term "pay" is wider than the term "salary". Cases which exemplify these propositions include Commissioner for Government Transport v Kesby (1972) 127 CLR 374 where the leading judgment in the High Court was that of Gibbs J and Metropolitan Water Sewerage and Drainage Board v Histon . It has also been held that the concept of "pay" is, generally speaking, a wider concept than that of "salary". As McHugh JA said in Rogan v Director-General of Technical and Further Education at 350 (with the concurrence of Kirby P and Samuels JA): The pay of an employee is a wider concept than that of the salary applicable to the office which the employee holds. It covers every payment to the employee in his character as an employee in respect of the performance of the duties of his office or position. 61 Although it was held in Stuart-Robertson v Lloyd (1932) 47 CLR 482 that the concept of "pay" may be narrower than that of "income", even in the narrowest sense of the latter word, the payment considered in that case was held to be income but not "pay, pension, salary or wages" as it was in the character of a reimbursement or indemnity for expenses incurred in the discharge of duties; see also Bayley v Bayley [1922] 2 KB 227. 62 In Nette v Howarth , Evatt and McTiernan JJ said: The word "pay" includes the remuneration granted to the holder of a rank or office in the case where he is relieved from actual performance of the duties of the office. In this sense it includes the half-pay of a military officer. A characteristic of a payment which answers the description "pay" is that the party received on account of the occupancy of some office, rank or employment . (emphasis added) 63 Their Honours distinguished the word "pay" from the word "pension". The term "pension" was held to describe a payment to a person who had retired in consideration of past services. A payment received as a refund of contributions to a pension fund because there was in fact no entitlement to a pension under the relevant statute was, in turn, distinguished from the concepts "pay" or "pension". Some of the cases referred to which give the concept of "pay" a narrow view are cases which turn particularly on their own special facts: see, for example, Upperton v Ridley [1900] 1 QB 680; on appeal: Upperton (Pauper) v Sir Matthew White Ridley [1903] AC 281; Goodwin v Sheffield Corporation [1902] 1 KB 629. I do not consider that any of these authorities contradict the general propositions in paragraph [60] or tell against the preliminary conclusion earlier set out in paragraphs [48] and [49]. 64 I conclude that the term "pay" in the subject clause of the Regulation is wide enough to include, and is intended to include, both the salary and the loading set out in the respective award clauses. History of long service leave provisions 65 It may be observed that an important aspect of the respondent's submissions involves reliance on the contrast between the phrase in Clause 40 "with pay" and the phrase appearing elsewhere in the Regulation, "full pay". Reference has earlier been made to the "patchwork" of references to various kinds of pay or payment in different parts of the Regulation and how, at least inferentially, the situation has occurred by a process of accretion through amendment or variation in various contexts over many years. 66 Consideration of the broader history of long service or extended leave tends to indicate that the notion of "full pay" arose from the way in which, historically, long service leave came to be granted to public servants and other officers and employees in the public sector of the various States. A useful conspectus of the early history may be found in the 1983 publication by Hugh Selby entitled Long Service Leave (Law Book Company Ltd, 1983), the successor to the earlier works by Watson J. The early pages of that work show how the antecedents of current long service leave provisions were the furlough provisions enacted for public servants in the pre-Federation colonies. The earliest provisions referred to are Victoria's Public Service Act 1862 and South Australia's Civil Service Act 1862. 67 Interestingly, the Victorian statute provided leave "where any officer desires to visit Europe or some other distant country". The Governor in Council could grant an officer "leave of absence upon half salary for a period not exceeding twelve months" where the officer had at least ten years service. The counterpart provisions in the South Australian statute did not condition the grant of leave upon a desire to visit Europe "or some other distant country" but only that the officer have "at least ten years continuous service". The benefit granted was "not exceeding twelve months' leave of absence on half salary , or, at his option, six months' leave of absence on full salary " (emphasis supplied). Similar entitlements were provided for additional periods of service. 68 In tracing the history further, Selby refers to the civil service in New South Wales securing similar concessions through regulation. The concessions also were initially granted as an exercise of discretion. By 1918 the leave had come to be a vested right for civil servants. The first New South Wales legislation providing for long service leave was enacted the next year. The relevant legislation was the Public Service (Amendment) Act 1919, ss 13 and 14 of which, importantly for present purposes, granted every officer with fifteen years service an entitlement to "three months leave on full pay or six months on half pay " with similar entitlements at the completion of twenty years service etc. Selby does not deal specifically with the situation of police officers. However, it appears that similar entitlements were not granted, at least by legislation, to police officers until 1944. The relevant statute was the Police Regulation (Amendment) Act of that year. The statute inserted ss 12A and 12B in the Police Regulation Act 1899. Those sections provided similar entitlements to those which had been granted under the Public Service Act 1902 by the 1919 amending statute: that is, an entitlement to "three months leave on full pay or six months leave on half pay " after a member of the police force had fifteen years of service, with similar entitlements for subsequent periods of service. These provisions have their counterpart in the current Regulation, clauses 71 to 72 of which, as earlier noted, continue the dichotomy between "full pay" and "half pay". 69 In my opinion, the historical circumstances of long service leave having been granted over a considerable period on the basis of a certain amount of leave on full pay or twice that amount of leave on half pay, indicates that the use of the phrase "full pay" in the Regulation is not intended to create a distinction between "full pay" and "with pay". Rather, it is to be seen as having its origin in provisions where the distinction being drawn was between "full pay" leave and leave at "half pay". There is thus no basis to construe the relevant phrase, that is the phrase "with pay", as involving a distinction with the notion of "full pay". The origin of the former phrase is to be explained on an entirely different basis. This circumstance also emphasises the importance of approaching the matter in terms of the principle enunciated by Priestley JA in Murphy v Farmer . 70 These considerations also, in my view, confirm the correctness of the preliminary conclusions earlier expressed. The outcome for which the applicant has contended should be accepted, at least in principle. The relief to be granted 71 It is to be observed that the grant of declaratory relief carries with it the grant of liberty to apply to seek further relief should the declaration granted not resolve the issues between the parties: see Royal Insurance Company Limited v Mylius (1926) 38 CLR 477 at 497 per Isaacs J (with whom Knox CJ and Starke J agreed) and Quin v Attorney General New South Wales (1988) 28 IR 244 at 249, 261. Subject to that consideration, although it seems appropriate to grant relief broadly as sought by the applicant, the precise orders sought are not appropriate. The orders sought were premised on the assumption that the suspension of Constable Griffith was not a suspension in accordance with cl 40(1) of the Regulation. Although it has been found that he was not appropriately paid for the suspension, I have no doubt he was suspended, and validly suspended, with pay in accordance with the relevant subclause. The declaratory orders made will reflect that conclusion and will, to that extent, vary from those sought by the applicant. The second declaration sought was, in any event, too wide. The form in which it is made is set out in the third declaration granted which has been accordingly slightly reformulated. Declarations and orders 72 The Court makes the following declarations and orders: Declarations that: 1. The suspension of Constable Barry Griffiths, a member of the applicant, the Police Association of New South Wales, from his office in the Police Service of New South Wales during the period 24 May 1996 to 8 March 1999 was a suspension with pay in accordance with clause 40(1) of the Police Service Regulation 1990. 2. The said suspension did not comply with the requirements of clause 40(1) of the said Regulation in that Constable Barry Griffiths was not paid, during the period of suspension, the ten per cent salary loading payable to him as an officer of the Police Service of New South Wales and as required by the Crown Employees (Non-Commissioned Police Officers) Award, as in force and as varied during that period. 3. The ten per cent salary loading payable to Constable Griffiths as an officer of the Police Service of New South Wales and as required by the Crown Employees (Non-Commissioned Police Officers) Award, as in force and as varied during that period, must form part of his pay for the purpose of his suspension from office with pay under clause 40(1) of the said Regulation.

73 The question of costs has been reserved. However, because of the nature of the proceedings involving, as they do, a dispute between a trade union and an employer of a large number of its members concerning the rights of a member of the union, clarification of whose rights may be of benefit to the membership generally, it may be appropriate there be no order as to costs. ______________

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