procedural. Proceedings insofar as they relate to the application for the Crown Employees (Police Officers Medical Discharge Process) Award are stayed pending the expiration of the Crown Employees (Police...
Key principles
The Commission will give effect to a 'no further claims' commitment in a current award by preventing an application for a new award which, on proper construction of the existing...
Issues before the court
Whether the Police Association's application for the Proposed Award contravened the 'No Further Claims' clause (cl 2) of the Crown Employees (Police...
Whether the Association's failure to follow the dispute resolution procedure in cl 76 of the Current Award required the Commission to refuse to deal...
Whether the Commission lacked jurisdiction to make the Proposed Award because it would infringe the Commissioner's statutory powers under s 94B...
Cited legislation
3 cited instruments linked from this judgment.
Plain English Summary
The Police Association sought an award to regulate the police medical discharge process after the Commissioner dissolved an existing review panel (MDRP). The Commissioner argued that the application for a new award contravened a 'no further claims' clause in the current Police Officers Award and, alternatively, that the Association had not followed mandatory dispute-resolution procedures. Commissioner Sloan found that the Proposed Award sought changes that went beyond restoring previously existing privileges and therefore amounted to 'improved conditions' contrary to the 'no further claims' clause. Rather than permanently dismissing the application, the Commission stayed that part of the proceedings until the current award expired on 30 June 2020, leaving the door open for the parties to return to the Commission thereafter.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,860 words · generated 02/07/2026
What happened
The Police Association of New South Wales filed an industrial dispute on 20 August 2019 after two officers (Sergeant Neal Snowden and Senior Constable Rachael Hill) were medically discharged or were to be medically discharged (Notification). The Association sought interim relief to prevent those medical discharges and, more generally, sought final relief in the form of a new award styled the Crown Employees (Police Officers Medical Discharge Process) Award 2019 (the Proposed Award). The Proposed Award sought, among other things, to reintroduce a Medical Discharge Review Panel (MDRP), impose a mutual redeployment obligation, and prescribe a medical retirement process including information rights for officers (see the Association's letter of 25 October 2019 and Proposed Award clauses 4–6).
The Commissioner of Police filed a Notice of Motion (13 November 2019) challenging the Commission's jurisdiction and seeking orders including that the dispute be set aside and interim orders vacated. By the time the Motion was narrowed for hearing (25 February 2020), the Commissioner limited the Motion to challenge the Commission's ability to make the Proposed Award. The Commissioner advanced two principal grounds during that hearing: (a) the Proposed Award breached the 'no further claims' clause (cl 2) in the existing Crown Employees (Police Officers - 2017) Award (the Current Award), and (b) the Association had not complied with the Current Award's dispute-resolution procedures (cl 76) so s 131 of the Industrial Relations Act authorized the Commission to refuse to deal with the application.
Commissioner Sloan analysed the text of cl 2, the Proposed Award, and the evidence about what preceded the Proposed Award (evidence of past MDRP practice, letters from NSW Police, and minutes). He concluded the Proposed Award could not be confidently described as simply restoring pre-19 August 2019 privileges and that parts of the Proposed Award sought improvements to conditions that fell within the 'no further claims' commitment. Given that conclusion, the Commissioner stayed proceedings relating to the Proposed Award until the Current Award expired on 30 June 2020, with liberty to apply to relist after that date. He did not permanently dismiss the application, nor did he resolve other arguments (including whether the Proposed Award would impermissibly fetter statutory powers under s 94B Police Act), which the Commissioner expressly left open for later consideration.
Why the court decided this way
There are three critical strands of reasoning:
Construction and enforcement of 'no further claims' clauses: The Current Award's cl 2 was worded broadly. Commissioner Sloan emphasised that while a strict approach is warranted to protect the integrity and certainty of awards, the actual words used must control the result (citing the principles in Re Corrections Health Services Nurses' Award (Wright J) and the Full Bench in Re Crown Employees (Teachers ...) [discussion at and following the quotation reproduced in the reasons]). The Commission parsed cl 2.1 and noted cl 2.2 allows only proceedings to interpret, apply or enforce existing award provisions. On the text, the parties had agreed not to bring 'claims for improved conditions of employment' during the term of the award (see the court's textual construction reproduced at paragraph [36]).
Substance over form: The Association framed the Proposed Award as merely restoring previously existing practice (the MDRP) and invoked cl 7 (Existing Privileges). The Commission analysed the Proposed Award clauses and the historical materials annexed to the Association's statement (minutes, statements, evidence of a prior MDRP). But the Proposed Award described its purpose as to 'reintroduce, in altered form, the Medical Discharge Review Panel' (cl 1.2.2) and contained express new procedural entitlements (for example, clause 6.1.1 requiring provision of full copies of information to officers). Those features suggested the Proposed Award did more than simply reinstate the precise old arrangements (see [58]–[66]). On the evidence the Proposed Award included departures and potential improvements and thus amounted to claims for improved conditions.
Discretion to preserve award certainty: Having found the Proposed Award advanced claims contrary to cl 2, Commissioner Sloan invoked the Commission's orthodox approach of enforcing 'no further claims' commitments. However, given ongoing constructive discussions between the parties and the proximate expiry date of the Current Award, he declined a permanent stay or dismissal and instead stayed the proceedings until the award expired, with liberty to apply after that date (see the exercise of discretion at [71]).
Commissioner Sloan also took a pragmatic approach to issues the Commissioner of Police had not pressed at the hearing (jurisdictional points about s 10 IR Act and s 94B Police Act). He proceeded on the Association's case at its highest for interlocutory fairness but expressly reserved substantive resolution of those points for a later stage.
Before and after state of the law
Before:
The Commission (and Full Bench) jurisprudence has established the importance of 'no further claims' provisions in awards, their role in maintaining certainty during the life of awards, and the need for a strict but textual construction of such clauses. Authorities such as Re Corrections Health Services Nurses' Award and Re Crown Employees (Teachers ...) articulate this approach.
After:
This interlocutory decision applies those principles to refuse to permit a party to advance an application for a new award during the life of an existing award where that application, on its terms and on the evidence, seeks changes amounting to improved conditions. It confirms that an applicant cannot simply label a claim as 'restorative' where the terms demonstrate alteration or improvement.
It also confirms the Commission's pragmatic discretion: where the primary ground disposes of the interlocutory challenge, alternative grounds (s 131 non-compliance or jurisdictional fetters) need not be decided; the Commission can stay rather than permanently deny an application when circumstances (ongoing talks, imminent expiry) make that appropriate.
This decision therefore sits in line with the established approach and provides a contemporary illustration of how the Commission applies those principles when the proposed instrument is drafted as an award rather than as bargaining or negotiation.
Key passages with plain-English translation
Court's construction of cl 2 (quoted in full in the reasons), see paragraph [36]:
Court text: the clause prevents 'extra wage claims', 'claims for improved conditions', 'demands' and instituting proceedings concerning wages or conditions before the Commission or any other tribunal except to interpret, apply or enforce existing award provisions.
Plain-English: Parties agreed that, until the award ends, they will not try to get better pay or improved working conditions via the Commission, except to argue about how the current award should be read or applied.
Court on what the Proposed Award actually sought (see [58]–[66]):
Court text distilled: the Proposed Award included an obligation to provide officers with information to be provided to the MDRP (cl 6.1.1), and it proposed reintroducing an MDRP 'in altered form' (cl 1.2.2).
Plain-English: The Proposed Award did not merely record a prior informal practice; it would have changed how things worked, giving officers new procedural rights and a restructured panel, which looks like seeking better conditions than existed under the current award.
Exercise of discretion to stay rather than strike out (see [71]):
Court text: stay is ordered rather than permanent dismissal, because parties are in ongoing discussions and the current award expires soon.
Plain-English: The Commission will not permanently shut down the Association's claim now; it will pause consideration until the restrictive award runs out, because the parties may settle or the prohibition will soon expire.
What fact patterns trigger this precedent
This decision will be most relevant when:
An industrial party seeks a new award (or amendment) during the currency of an existing award that contains a broad 'no further claims' commitment; and
The proposed instrument recasts prior operational practice into formal award obligations but does so in terms that suggest additions or changes (for example, 'reintroduce...in altered form', new procedural rights, or new substantive obligations); and
The respondent relies on the 'no further claims' clause and the applicant contends the proposal merely restores previously enjoyed privileges; or
There are also parallel contentions of failure to exhaust or follow in-instrument dispute-resolution procedures (s 131 issues), although the Court may not need to decide those if the 'no further claims' ground is dispositive.
In short, where the applicant asserts that a proposed award simply memorialises previous practice, but the drafting or evidence demonstrates alteration or augmentation, expect the Commission to treat the claim as a further claim that may be stayed or deferred until expiry.
How later courts have treated it
The decision itself is interlocutory and primarily applies existing authorities rather than establishing a new doctrinal pivot. It explicitly cites and follows prior Commission authorities (e.g., Re Corrections Health Services Nurses' Award; Re Crown Employees (Teachers...); New South Wales Nurses and Midwives' Association v Health Secretary) to reinforce the established rule that 'no further claims' clauses are to be given effect. It also relied on Rail, Tram and Bus Union and NSW Ministry of Health decisions to treat the respondent's concession on jurisdiction as appropriate. The judgment does not record subsequent appellate treatment. Any change to the principles applied would require later full-bench or appellate authority, which is not part of this decision.
Still-open questions
Substantive limits of 'restorative' claims: The judgment makes clear that a claim to 'restore' a prior privilege may sit outside a 'no further claims' clause, but it leaves unresolved precisely how close a proposed instrument must be to historic practice to fall within cl 2.2's exception. The Commission did not set a tight test; it relied on the evidence that the Proposed Award expressly contemplated alterations.
Relationship between cl 7 'existing privileges' and 'no further claims': While the Association invoked cl 7, the Commission was not persuaded that cl 7 could sustain the Proposed Award in its current terms. The boundary between an entitlement that survives an award under cl 7 and a new 'improved condition' remains a fact-sensitive inquiry.
Interaction with s 131 IR Act: The Commission did not decide whether failure to comply with in-award dispute protocols would have independently required refusal under s 131. That remains an open issue in contexts where the 'no further claims' point is not dispositive.
Jurisdictional limits vis-a-vis statutory powers: The Commissioner preserved the point that a proposed award might impermissibly fetter a statutory power (s 94B Police Act). The court did not determine that question; the circumstances in which an award would be an impermissible fetter (as opposed to permissible administrative regulation of employment conditions) remain to be fleshed out in future proceedings.
Remedy design: The Commission elected an interim solution (stay) rather than a final disposal. The substantive merits of whether the substantive processes proposed by the Association (e.g., MDRP composition, information rights) should be made into award terms remain open and fact-dependent.
Practitioners advising on drafting awards or on whether to initiate award proceedings while a 'no further claims' clause is in force should therefore assess carefully whether the proposed instrument genuinely restores prior rights on the evidence and whether the drafting contains express changes or enhancements that would likely attract the Commission's enforcement of a 'no further claims' commitment.
Judgment (10 paragraphs)
[1]
INTERLOCUTORY Judgment
On 20 August 2019 the Police Association of New South Wales ("Association") filed with the Office of the Industrial Registrar a notification of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 (NSW) ("Notification"). The Notification arose from decisions made by the Commissioner of Police, through his delegate, to medically discharge Sergeant Neal Snowden and Senior Constable Rachael Hill from the NSW Police Force, with effect from Thursday, 22 August 2019.
Through the Notification the Association sought to prevent the decisions to medically discharge the officers from taking effect. The Association requested an interim order that the Commissioner of Police not medically retire Sgt Snowden or SC Hill pending the determination of these proceedings, and a final order that the Commissioner of Police not medically retire either Sgt Snowden or SC Hill.
On 21 August 2019 the Association filed with the Registry an Application for Orders seeking the interim orders foreshadowed in the Notification.
The hearing of the Association's application for interim orders took place on 1 October 2019. During the course of the hearing Mr Slevin of counsel, who appeared for the Association, made the following submissions: [1]
"The dispute is really in two parts, Commissioner. You'll see the urgent dispute that arises from the pending dismissal of two officers and you see from the description of the dispute a much wider dispute that, indeed, has implication for the entire force as to the way the Commissioner is applying the regulatory, various regulatory instruments associated with injury or workplace injuries.
And so today we deal with, on an interim basis or seeking interim orders, in relation to particular officers. There is, of course, the outstanding matter of general dispute as to the way in which the Commissioner of Police appears to be now conducting its affairs in relation to injured officers."
When asked by the Commission what relief was being sought in relation to what he had described as the "general dispute", Mr Slevin stated: [2]
"The sort of relief that the association is considering is by way of an award that sets out procedural mechanisms, not unlike the policy document that I took you to, that are to be followed in circumstances of return to work and along with that, that sort of prescription, a dispute mechanism that allows officers who are caught up in that process to raise concerns along the way, as it were and have those concerns addressed and that deals with the two issues that have arisen here which, first of all, how the procedure was applied and, secondly, the question of procedural fairness as to information being given along the way.
So, that's the type of final award that we'd seek. …"
On 11 October 2019 I handed down my decision in Police Association of New South Wales v Commissioner of Police [2019] NSWIRComm 1076. I granted the interim orders sought by the Association and recommended that the parties confer as to the possibility of implementing a graduated return to work for Sgt Snowden and SC Hill consistent with available medical evidence. I listed the matter for further directions on 22 October 2019.
At the directions hearing on 22 October 2019 I made the following directions: [3]
"I direct the notifier to inform the respondent of the details of the final relief that are sought in these proceedings, including but not limited to any award that is being sought, by close of business on Friday 25 October 2019.
I list the matter for further directions to be conducted by telephone at 9.30am on Tuesday 5 November 2019. I grant the parties liberty to apply on reasonable notice."
When the matter returned on 5 November 2019, Ms C Young from the Association and Mr M Watts, a solicitor in the employ of the solicitors for the Commissioner of Police, appeared. Ms Young informed the Commission that the Association had written to Mr Watts on 25 October 2019 outlining the relief being sought, and had included a copy of a draft award that the Association was seeking.
The Association's letter of 25 October 2019 stated as follows:
"We refer to the above matter and to the directions hearing before Commissioner Sloan on 22 October 2019.
We note that the Association was to advise the Respondent of the details of the Final Relief sought in these proceedings, including but not limited to any award sought, by close of business on 25 October 2019.
In terms of Final Relief in settlement of the Dispute, the Association seeks:
1. The Commission make an Order under s 136(1)(c) and 137(1)(c) of the Industrial Relations Act 1996 (NSW), that the Respondent not carry out the threat to dismiss Senior Constable [Rachael] Hill;
2. The Commission make an order under s 136(1)(c) and 137(1)(c) of the Industrial Relations Act 1996 (NSW), that the Respondent not carry out the threat to dismiss Sergeant Neal Snowden; and
3. That the Commission make an Award, to be known as the Crown Employees (Police Officers Medical Discharge Process) Award 2019, under s 136(1)(b) and Part 1 of Chapter 2 of the Industrial Relations Act 1996 (NSW).
We attach, for the purpose of discussion, a draft copy of the Crown Employees (Police Officers Medical Discharge Process) Award 2019. Accordingly, we invite you to contact the writer or Assistant Secretary Kirsty Membreno, should you wish to discuss further."
Amongst other things, the proposed Crown Employees (Police Officers Medical Discharge Process) Award 2019 ("Proposed Award"):
1. seeks to establish a body to be called the "Medical Discharge Review Panel" ("MDRP"), which would have the purpose of "making an independent non-binding recommendation to the Commissioner about whether it is appropriate for the Commissioner to medically retire a police officer under s 94B of the Police Act 1990" (cl 4);
2. imposes a "mutual obligation" on NSW Police and an injured officer to explore options for redeployment, with referral to the MDRP for review and recommendation to take place only after all reasonable attempts to return the officer to permanent suitable employment have been exhausted (cl 5); and
3. establishes a process to be followed prior to an officer being medically retired, including the provision of certain information to the officer (cl 6).
At the directions hearing on 5 November 2019 Mr Watts foreshadowed that the Commissioner of Police would be challenging the jurisdiction of the Commission to make any of the orders sought by the Association and that a notice of motion would be filed in the near future.
The Commissioner of Police filed the notice of motion on 13 November 2019 ("Motion"). The Motion sought from the Commission the following:
"1. a declaration that the Commission has no jurisdiction over the Respondent in respect of the subject matter of these proceedings;
2. an order setting aside the dispute notified by the Police [Association] of New South Wales on 21 August 2019;
3. an order that the interim orders made by the Commission on 11 October 2019 are beyond jurisdiction and are otherwise vacated; and
4. any further or other orders that the Commission sees fit."
I convened a further directions hearing on 13 December 2019. As a result of progress being made between the parties to resolve the dispute in so far as it concerned Sgt Snowden and SC Hill, the Commissioner of Police suggested that the Motion proceed only in respect of the Commission's jurisdiction to make the Proposed Award. Directions were made to this effect.
The hearing of the Motion took place on 25 February 2020. Mr Watts appeared for the Commissioner of Police. Mr Slevin once again appeared for the Association.
The Commissioner of Police read an affidavit sworn by Mr Watts on 13 November 2019. The Association read a statement of Kirsty Anne Membreno, Assistant Secretary Industrial of the Association, dated 18 February 2020 and a statement of Peter James Remfrey, a former Secretary of the Association, dated 19 February 2020.
Consistent with the interlocutory nature of the proceedings, none of the witnesses were required for cross examination. The Commissioner of Police objected to the Association's evidence on the basis of relevance, and to a portion of Mr Remfrey's statement on the basis that it comprised inadmissible opinions. I have taken those objections into account in considering the weight to be afforded to the Association's evidence, having regard to s 163 of the Industrial Relations Act.
[2]
The Motion
I have set out at [12] above the prayers contained the Motion. On its terms, the Motion challenged the jurisdiction of the Commission to grant the relief sought by the Association in these proceedings in their entirety and the grounds and reasons contained in the Motion reflected that. As the hearing proceeded ostensibly on the basis only of the challenge to the Commission's jurisdiction to make the Proposed Award, the Commissioner of Police relied only on the following grounds and reasons set out in the Motion:
"No compliance by the Notifier with award obligations
12. The Crown Employees (Police Officers - 2017) Award is the current award made by this Commission that binds the Notifier and the Respondent.
13. Consistently with the requirements in subsection 14(3) of the IR Act, the Crown Employees (Police Officers - 2017) Award contains dispute resolution procedures (see cl. 76), which provide for workplace consultation.
14. The Notifier has not complied with the dispute resolution procedures. The Notifier has not engaged in any consultation with the Respondent regarding the terms of its proposed award whatsoever prior to attempting to expand the scope of the current dispute to include its application for relief to that effect.
15. The dispute resolution procedures provide that 'neither party will initiate proceedings under Chapter 3 of the IR Act until procedures under these clauses have failed to resolve the issue and each constituent of the other party has been given three clear days notice (exclusive of weekends) of that intent'. No such notice was provided.
16. Section 131 of the IR Act provides that 'the Commission may refuse to deal with an industrial dispute until it is satisfied that any relevant dispute resolution procedures in an industrial instrument have been followed as far as is reasonably practicable in the circumstances'.
17. Not only have the dispute resolution procedures not been followed, there has not been any attempt by the Notifier to comply with such procedures, or even engage in any level of consultation with the Respondent regarding the proposed award.
18. In these circumstances, the Commission ought to exercise its discretion to refuse to deal with this aspect of the dispute until consultation between the parties has occurred, and if there is a dispute between the parties, the dispute resolution process has been followed.
No jurisdiction to make an award
19. The Commission's power to make an award is governed by section 10 of the IR Act, which states 'the Commission may make an award in accordance with this Act setting fair and reasonable conditions of employment for employees'.
20. The Award being sought in these proceedings relates to the medical discharge process for police officers and the establishment of a medical discharge review panel.
…
23. Even if the Commission concludes, contrary to the above, that the proposed award does involve the setting of conditions of employment, clause 2.1 of the Crown Employees (Police Officers - 2017) Award provides that 'during the term of this award, there will be no extra wage claims, claims for improved conditions of employment or demands made with respect to the employees covered by the award and, further, that no proceedings, claims or demands concerning wages or conditions of employment with respect to those employees will be instituted before the Industrial Relations Commission or any other industrial tribunal". (emphasis added)
24. Accordingly, even if the Commission were to find that the proposed award relates to conditions of employment, making the award would contravene the 'no further claims' clause in the Crown Employees (Police Officers - 2017) Award.
(Emphasis in original)
[3]
Commissioner of Police
The Commissioner of Police contended that the Commission "cannot make the award sought by the Notifier in these proceedings". [4] He ran two arguments. In the first place, he submitted that the application for the Proposed Award contravened the "no extra claims" commitment in cl 2 of the Current Award. The jurisprudence of the Commission supports the proposition that the Commission will not entertain an application for a new award made in direct contravention of an existing "no extra claims" commitment.
The Commissioner of Police submitted that if made, the Proposed Award would impose administrative obligations on him when medically retiring police officers. In circumstances where the Commission is only empowered by s 10 of the Industrial Relations Act to make awards about conditions of employment, it must follow that, if made, the Proposed Award would convey entitlements on police officers relating to conditions of employment. Accordingly, it constitutes an extra claim, in contravention of cl 2 of the Current Award.
The second, alternative submission advanced by the Commissioner of Police was that the Association had not complied with the dispute resolution procedures in cl 76 of the Current Award prior to broadening the dispute before the Commission to include an application for the Proposed Award. The dispute had originated as one involving Sgt Snowden and SC Hill. It was only during the course of the proceedings that the Association had raised the possibility of the Proposed Award, which was first presented to the Commissioner of Police as the Association's "Final Relief" in the letter of 25 October 2019.
In these circumstances it was submitted that the Commission should exercise its discretion under s 131 of the Industrial Relations Act to refuse to deal with the Proposed Award. The Commissioner of Police contended that: [5]
"…if the Commission were to do otherwise, it would signal to the parties that they need not even attempt to comply with the dispute resolution procedures in the Current Award prior to filing a dispute with this Commission. This is inconsistent with the statutory purpose of s. 131 of the IR Act, and carries the risk of undermining the effectiveness of the dispute resolution provisions in the Current Award, and potentially other industrial instruments as well. Consistently with the submissions above regarding the 'no extra claims' clause, the parties should be held to their commitments made in the Current Award, including to conduct attempts to resolve disputes inter partes, prior to involving the Commission."
[4]
The Association
The Association contended that the application for the Proposed Award did not contravene cl 2 of the Current Award. It was submitted that it was necessary to read cl 2 in the context of the Current Award as a whole, noting in particular cl 7 which provides as follows:
7. Existing Privileges
7.1 Except so far as altered expressly or by necessary implication, this Award is made on the understanding that all other existing privileges and conditions not specified herein shall continue during its currency.
The Association relied on Mr Remfrey's evidence that a MDRP had been established "some years" prior to 2010 and had continued until August 2019. In the past, the MDRP reviewed the files of officers who NSW Police proposed to be medically discharged. It made recommendations to the Commissioner of Police on matters such as whether there had been compliance by NSW Police with its obligations regarding rehabilitation and provision of suitable duties, whether an officer should be medically discharged and whether the injury occurred on or off duty.
Annexed to Ms Membreno's statement was a letter from Mal Lanyon, the Deputy Commissioner, Corporate Services of NSW Police, to Tony King, the President of the Association, dated 19 August 2019. In that letter Mr Lanyon stated that the MDRP would "cease to exist" with effect from that day.
The Association submitted that in purporting to abolish the MDRP on 19 August 2019 the Commissioner of Police had failed to comply with his obligations under cl 7 of the Current Award. In this context (which I have summarised in very broad terms), it was said that the word "improved" in cl 2 of the Current Award is of "critical significance". [9] In responding to the submissions of the Commissioner of Police, the Association submitted as follows:
"14. Objectively construed, the parties have plainly intended to confine that part of the No Further Claims commitment pertinent to 'improved conditions', to claims for conditions that are 'better' or 'more desirable' than those that existed when the Award was made. It is simply wrong to contend no limitation was intended, or that the parties agreed 'not to bring any further claims of any nature relation to conditions of employment for police officers' or that 'the parties agreed not to [make] any application to this Commission with any form of claim or demand that related to conditions of employment for police officers'."
(Emphasis in original, footnotes omitted)
[5]
No further claims argument
There was no real controversy between the parties as to the importance that the Commission attaches to "no extra claims" commitments in awards. Both parties referred me to the oft-cited decision of Wright J in Re Corrections Health Services Nurses' Award (1999) 90 IR 235; [1999] NSWIRComm 123 in which his Honour stated (at 245):
"It should be emphasised that the Commission must ensure the integrity of not only its own wage fixing principles but also the strict observance of agreements and undertakings given by parties compliance with which, properly considered, are important and indeed essential to the integrity to the principles. Undertakings such as no extra claims provisions are crucial parts of the integrity of the system of wage fixation which occurs in the New South Wales system of industrial regulation. Therefore, nothing in this decision should be seen as providing any precedent for any other award or for any other part of the public sector. It is to be emphasised that this decision is arrived at in the light of the very particular and unusual set of circumstances of the present application. Any other consideration of such matters would necessarily depend on its particular facts.
In approaching the construction of no extra claims provisions, or provisions such as those contained in the Heads of Agreement, a strict approach of their construction should be applied consistent with the necessity of maintaining the integrity of the wage fixation principles. Nevertheless, a strict construction (that is, one which would be alert to ensure inappropriately brought claims do not proceed) does not require the Commission to ignore the actual words used in the provision or to ignore a clear attempt by the parties to limit the terms of the commitment."
In Re Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award and Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award [2008] NSWIRComm 209 the Full Bench stated:
"16. The purpose of no further claims commitments is to ensure certainty during the life of the relevant industrial instrument. That is to say, all matters agreed or arbitrated upon represented a settled arrangement for the term of the award or agreement. Depending on the terms of the commitment, employers could plan and act on the basis that during the life of the award or agreement, they would not incur any additional labour costs or industrial action in support of extra claims, nor would they be required to divert resources to dealing with such claims. Employees and their unions would not face claims to cut wages or alter to their detriment employment conditions prescribed by the award or agreement."
[6]
Dispute resolution clause
In light of the finding at [63] above, it is unnecessary to address the alternative submission advanced by the Commissioner of Police, namely the alleged failure by the Association to comply with the disputes settlement procedures contained in cl 76 of the Current Award.
[7]
Ongoing discussions between the parties
During the hearing Mr Slevin stated as follows: [13]
"I pause there, Commissioner, because you'll see at the end of Ms Membreno's statement she says that further discussions could occur and the association doesn't resist further discussions and indeed at the end of my address I suggest, but I just foreshadow it now, the association is open to conciliation prior to moving into arbitration on the claim for the award. My instructions are that from the association's point of view we believe we're very close to reaching agreement about the issues dealt with by the award, but that's the situation the full chronology. …"
And later: [14]
"…Commissioner, you might have said that the discussions may have been about an award that might be made. We don't go so far as to say that's where the discussions are heading. The dispute may be resolved otherwise and indeed, on my instructions, that may well be the case. There may not need to be an award made to resolve the dispute but at the moment the dispute remains unresolved, despite the discussions that the parties have had; close, but no prize at the moment, Commissioner."
Mr Watts acknowledged that discussions between the parties regarding the issues raised by the Proposed Award were continuing, and that "the parties are close". [15]
These submissions suggest that the parties would benefit from further time to confer with a view to resolving the dispute. I have had regard to this when considering the order to be made.
[8]
Order to be made
The Commissioner of Police, rightly, did not seek any of the orders referred to at [12] above. This was appropriate given the limited basis on which the Motion was pressed (at least for the present) and the concession by the Commissioner of Police that no jurisdictional issues arose from the arguments being advanced presently on the Motion. Instead, the Commissioner of Police sought a permanent stay of the proceedings, in so far as they concerned the application for the Proposed Award.
I do not consider that a permanent stay is warranted, particularly given the ongoing and apparently positive discussions between the parties and the relative proximity of 30 June 2020. At the same time it is necessary to give effect to the "no further claims" commitment in the Current Award.
[9]
Order
I order that to the extent that these proceedings relate to the application by the Police Association of New South Wales that the Commission make the Crown Employees (Police Officers Medical Discharge Process) Award:
1. the proceedings be stayed pending the expiration of the Crown Employees (Police Officers - 2017) Award; and
2. the parties have liberty to apply, on reasonable notice, to have the matter restored to the list for the purpose of making directions for the further conduct of the proceedings after 30 June 2020.
Damian Sloan
Commissioner
[10]
Endnotes
Tcpt 1 October 2019 pp 1(48)-2(2)
Tcpt 1 October 2019 p 29 (16-26)
Tcpt 22 October 2019 p 6 (20-27)
Submissions on Notice of Motion at par 1
Submissions on Notice of Motion at par 33
Submissions on Notice of Motion at par 24
Submissions on Notice of Motion at par 25
Submissions on Notice of Motion at par 22
Submissions in Reply to the Notice of Motion at par 12
Submissions in Reply to the Notice of Motion at par 33
Tcpt pp 23(16) - 24(41)
Tcpt p 21 (5-17)
Tcpt p 20 (7-14)
Tcpt p 27 (1-7)
Tcpt p 34 (13)
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 18 March 2020
Parties
Applicant/Plaintiff:
Police Association of New South Wales
Respondent/Defendant:
Commissioner of Police
Legislation Cited (3)
Police Amendment (Death and Disability) Act 2011(NSW)
Proceedings insofar as they relate to the application for the Crown Employees (Police Officers Medical Discharge Process) Award are stayed pending the expiration of the Crown Employees (Police Officers - 2017) Award; parties have liberty to apply to restore the matter after 30 June 2020.
To provide context to these contentions, cl 2 of the Crown Employees (Police Officers - 2017) Award ("Current Award") provides as follows:
2. No Further Claims
2.1 The parties agree that, during the term of this award, there will be no extra wage claims, claims for improved conditions of employment or demands made with respect to the employees covered by the award and, further, that no proceedings, claims or demands concerning wages or conditions of employment with respect to those employees will be instituted before the Industrial Relations Commission or any other industrial tribunal.
2.2 The terms of the preceding paragraph do not prevent the parties from taking any proceedings with respect to the interpretation, application or enforcement of existing award provisions.
Clause 76 of the Current Award sets out a process by which the NSW Police and its employees will attempt to resolve disputes or grievances that arise between them. For reasons which will become clear, it is not necessary to reproduce the provision.
Clause 95.2 of the Current Award provides that the Current Award will remain in force until 30 June 2020.
Section 131 of the Industrial Relations Act provides as follows:
131 Mandatory dispute resolution procedures to be followed first
The Commission may refuse to deal with an industrial dispute until it is satisfied that any relevant dispute resolution procedures in an industrial instrument have been followed as far as is reasonably practicable in the circumstances.
Two further contentions appeared in the Motion and in the written submissions of the Commissioner of Police. The first was that the Proposed Award involves an attempted infringement, or the imposition of an improper fetter, on his statutory powers under s 94B of the Police Act 1990 (NSW). The second was that the Proposed Award would not set conditions of employment. As the Commission is only empowered by s 10 of the Industrial Relations Act to make awards "setting fair and reasonable conditions of employment for employees", the application for the Proposed Award does not enliven the Commission's jurisdiction.
In his written submissions, the Commissioner of Police stated that the second of these arguments was "not a point that the Commission needs to consider or determine for present purposes", with cl 2 of the Award comprising "a complete answer to the Proposed Award". [6] Further, at the hearing of the Motion, Mr Watts informed the Commission that the Commissioner of Police was not pressing the grounds summarised at [26] above for the purposes of the Motion. The Commissioner reserved his position to rely on them at a later stage of the proceedings, subject to the outcome of the Motion.
Given the position adopted by the Commissioner of Police, I have not given consideration to these grounds. To the contrary, to consider the Association's case at its highest, I have proceeded on the assumptions that the Proposed Award would indeed set terms and conditions of employment and would not offend s 94B of the Police Act. I emphasise that this is only to ensure fairness to the Association in respect of the Motion and should not be taken as indicating a finding on either ground.
There was one other significant clarification made during the hearing. The reference in the Motion to cl 2 of the Current Award appears under the heading "No jurisdiction to make an award". In his written submissions the Commissioner of Police contended that the effect of cl 2 was that the application for the Proposed Award "cannot be entertained" [7] and "must be dismissed" [8] .
I sought to clarify from Mr Watts whether it was contended that by virtue of cl 2 of the Award the Commission had no jurisdiction to entertain the application for the Proposed Award or whether, in the alternative, the Commission ought not exercise its jurisdiction. Mr Watts conceded that the Commission had the jurisdiction to determine the matter but that it should decline to exercise it, preferably in the form of a permanent stay.
With respect, in light of Rail, Tram and Bus Union of New South Wales & ors v Secretary for Transport [2017] NSWIRComm 1032 at [16]-[18] and NSW Ministry of Health v Health Services Union New South Wales and anor [2019] NSWIRComm 1035 at [39]-[41], this was a concession properly made.
The Association submitted that the Proposed Award was not a claim for "improved conditions of employment", but rather sought to re-establish the status quo which had existed prior to 19 August 2019. The Association's written submissions stated:
"17. On its proper construction, the No Further Claims clause does not constrain the Association's capacity to raise a dispute (under cl 76.10 of the Award), initiate proceedings in the Commission (under Chapter 3 of the IR Act), and if necessary or appropriate seek an Award (or a variation to an existing Award, both being forms of relief contemplated in resolution of a dispute under Chapter 3 of the IR Act: s 136(1)(b)), that seeks to restore a privilege or condition that existed at the time the Award was made (but was not specified in the Award) and was unilaterally revoked by the Respondent, or with which the Respondent has failed to comply."
The Association referred me to Crown Employees (Roads and Traffic Authority of New South Wales Salaried Staff) Award [2011] NSWIRComm 1017. In that case Connor C held that a claim to restore an entitlement which had allegedly been removed from employees subsequent to the making of an award did not contravene the "no extra claims" commitment contained in the relevant award.
In relation to the alleged non-compliance by the Association with cl 76 of the Current Award, the Association made three arguments. Firstly, the dispute is not limited to Sgt Snowden and SC Hill, but extends to include the contentions that officers are being inappropriately referred for consideration for medical retirement when medical evidence supports a graded return to work, and that NSW Police is failing to afford procedural fairness to officers in the medical retirement process. The Commissioner of Police erroneously conflates the dispute with the relief sought, namely the Proposed Award.
Secondly, and on a related point, it is wrong to contend that the Association has failed to comply with cl 76 in relation to the dispute. Again, the Commissioner of Police erroneously conflates the consultation around a form of relief sought in resolution of a dispute and consultation around the dispute itself.
In any event, it was said that the evidence of Ms Membreno demonstrated that discussions between the Association and NSW Police "surrounding the broader issue of the appropriate process for the medical retirement of police officers" [10] have been ongoing since November 2019, which were preceded by correspondence between the parties, including the Association's detailed response to the letter from NSW Police of 19 August 2019.
Thirdly, even were it to be found that there had been non-compliance with cl 76 of the Award, that could never support the dismissal of an application for an award. It might support the Commission deferring dealing with the dispute until it was satisfied of compliance.
The Association submitted that the Motion should be dismissed and the matter listed for further conciliation.
The Commissioner of Police referred me to several other authorities to a similar effect. It is unnecessary to traverse them all.
The first question to be determined is how cl 2 of the Current Award is properly to be construed. The approach to the construction of awards was recently summarised by the Full Bench in New South Wales Nurses and Midwives' Association v Health Secretary on behalf of Western NSW Local Health District [2019] NSWIRComm 1025 at [21]-[24]. I will not reproduce those passages, although I am guided by them.
The agreement of the parties reflected in cl 2 is in reasonably emphatic terms. On its face, and noting the use of the words "or" and "further" in cl 2.1 and the exemption in cl 2.2, the provision reflects a commitment from each party that during the term of the Current Award (that is, until 30 June 2020) they will not:
1. make extra wage claims; or
2. make claims for improved conditions of employment; or
3. make demands with respect to the employees covered by the award; or
4. commence proceedings, or make claims or demands, concerning wages or conditions of employment with respect to those employees in the Commission or any other industrial tribunal, other than for the purpose of interpreting, applying or enforcing the existing provisions of the award.
Clause 2 clearly does not preclude claims, demands or proceedings seeking to apply or enforce the existing provisions of the Current Award. This is at the heart of the Association's case. It claimed that it was seeking, consistent with the commitment in cl 7 of the Current Award, to restore the arrangements that were in place prior to 19 August 2019. The Association did not expressly invoke cl 2.2, although it is perhaps implicit in the submissions referred to at [36] above.
During the hearing I had the following exchange with Mr Slevin: [11]
"COMMISSIONER: So it's your client's position here in front of the Commission today that the proposed award does nothing more than codify what was in place prior to August 2019.
SLEVIN: That's the intention.
COMMISSIONER: Not the intention. That it goes no further than what was already in place.
SLEVIN: Well, if there's to be an argument and there may be--
COMMISSIONER: Well, your position is that it's maintaining the status quo and therefore it can't be an improved condition of employment so I'm asking is it the Police Association's position here before me that the proposed award does nothing more, goes no further than codify what was in place prior to August 2019?
SLEVIN: Those are my instructions.
COMMISSIONER: Thank you.
SLEVIN: So in that sense it's not an extra claim. It may well be that in resolving the claim - returning to your earlier question, Commissioner - in resolving the claim that a different remedy you may consider - you're not bound by the remedies sought by the parties ultimately - a different remedy is awarded under s 136.
Those arguments, however, Commissioner, are arguments to be dealt with at the substantive hearing of the matter after evidence can be led and submissions can be made in support of the position that I've just articulated to you and so it becomes a matter then for final relief, as it were, and certainly flags to you that it would be premature to be pre-empting the outcome of that exercise by making a conclusion at this early stage without having heard full evidence and full argument that, well, this is an extra claim and I won't grant it, which is the essence of now what's been put.
In the submissions made - my instructors are concerned with your question and quite properly so. There may be something in the proposed award that may go beyond existing practice and so I'll provide that to them, Commissioner, just so--
COMMISSIONER: Mr Slevin, just noting the time, would you like the opportunity to have a break now and perhaps consider that very point?
SLEVIN: Yes, thank you.
SHORT ADJOURNMENT
SLEVIN: On that point that you adjourned for, and I'm grateful for that adjournment, those instructing me have drawn my attention to cl 6.1.1 of the proposed award, the medical retirement process. 6.1.1 would require the New South Wales Police:
'to provide the police officer and, where the police officer has nominated a representative, the representative with a full and complete copy of any document and/or other information that is to be provided to the MDRP for consideration as to whether the police officer ought be medically retired.'
The claim arises because of the circumstances of Sergeant Snowden in the dispute notification described at paras 49 and 50 that:
'the standard processes of the MDRP involve the preparation of a detailed submission for consideration of the panel members, including reports prepared by the IMA and the officer's command and medical reports collected by the NSWPF over time,'
and 50:
'Sergeant Snowden was never provided a copy of the information supplied to the MDRP'.
My instructions are that the extent of the information provided to officers in the past is a matter that is not fully within the knowledge of the association. So it may be argued against the association that 6.1.1 would be an improved condition. So it's only that question of an improvement by way of the provision of information to the officer."
On the basis of this exchange I understand the Association's position to be that the only departure from prior practice contained in the Proposed Award was clause 6.1.1, which was quoted by Mr Slevin in the extract reproduced immediately above. I am not convinced, however, that this is the only way in which the Proposed Award departs from the "existing privileges and conditions" in place prior to 19 August 2019, to adopt the language of cl 7 of the Current Award.
In his statement Mr Remfrey described the creation of the MDRP, which was in the context of the Crown Employees (Police Officers Death & Disability) Award 2005 ("Death & Disability Award"). He stated what he understood the purpose of the MDRP to be and described his experiences as a member of the MDRP over a number of years.
Annexed to Ms Membreno's statement were minutes of a meeting of the MDRP held on 21 June 2006. The minutes refer to draft "Terms of Reference" for the MDRP being tabled which, while agreed in principle, were deferred for acceptance until the next meeting to allow time for the members to peruse the document. The Terms of Reference contain the following "overview":
"The Crown Employees (Police Officers Death & Disability) Award (the Award) was made on 5 December 2005. The Award facilitates the introduction of the Death & Disability Insurance Scheme (the scheme) which provides for a lumps sum benefit upon the death or disablement of a police officer.
The Award also affects the medical discharge process. In particular, the 'mutual obligation' provisions require both the injured officer and NSW Police to actively cooperate in rehabilitation. Consequently, every effort is required to return the officer to pre-injury duties or identify a suitable position for redeployment before an officer will be granted a medical discharge."
There is no evidence that the Terms of Reference were ultimately finalised or approved. I will proceed on the assumption that they were, and were not subsequently altered.
The Death & Disability Award was rescinded on 9 December 2011 by s 199I of the Police Act, which was inserted into the legislation by the Police Amendment (Death and Disability) Act 2011 (NSW).
Clause 1.2 of the Proposed Award provides as follows:
"1.2 This Award is made in resolution of a dispute (Matter No. 2019/258976). The purposes of this Award include:
1.2.1 to create Award obligations with respect to the deployment of injured police officers who are fit for suitable police work but unfit for pre-injury duties;
1.2.2 to reintroduce, in altered form, the Medical Discharge Review Panel; and
1.2.3 to establish a process that procedural affords fairness to police officers who are to be considered for medial retirement under s 94B of the Police Act 1990;
so as to minimise the potential for disputation surrounding the medical retirement of police officers, to promote participation in industrial relations by representative bodies of employees, and establish a framework for industrial relations (in particular in the context of redeployment or alternative medical retirement) that is fair and just."
Taking the Association's evidence at its highest, there is a broad coincidence between the Terms of Reference and cl 4 (Medical Discharge Review Panel) of the Proposed Award. That is, there is a similarity between the historical arrangements regarding the composition and operation of the MDRP with what is proposed in cl 4 of the Proposed Award.
However, cl 1.2.2 of the Proposed Award refers to the MDRP being reintroduced "in altered form". On its face the document calls into question the extent to which it does no more than re-establish what was in place prior to 19 August 2019. The extent to which the MDRP will be "altered" was not explored before me.
It is also unclear from the evidence that the provisions of the Proposed Award under cl 5 (Mutual Redeployment Obligation) and cl 6 (Medical Retirement Process) were arrangements in place prior to 19 August 2019. Annexed to Ms Membreno's statement was a document titled "NSW Police Force, Injury Management Procedures". I was not taken to that document in any great detail, and there was no attempt to compare the provisions of the Injury Management Procedures with cll 5 and 6 of the Proposed Award. While there appears to be some overlap between them, I cannot be satisfied that they are "on all fours".
In any event, there is no evidence that the decision of the Commissioner of Police to dissolve the MDRP had any impact on the continued application of the Injury Management Procedures, other than in respect of two clauses that make reference to the MDRP. This calls into question the extent to which cll 5 and 6 of the Proposed Award, at least, could be justified on the basis of giving effect to cl 7 of the Current Award.
In light of these matters, I do not accept the Association's submissions that the Proposed Award is not a claim for "improved conditions of employment". Further, while the purported dissolution of the MDRP might arguably be contrary to cl 7 of the Current Award, which might in turn allow a claim to have it reinstated without offending cl 2, there seems no basis on which cl 7 could be called in support of the demands for cll 5 and 6 of the Proposed Award. I also have reservations as to whether it would support cl 4 of the Proposed Award in its current terms. As a result, the application for the Proposed Award does not fall within cl 2.2 of the Current Award.
During the hearing Mr Slevin made the following submissions: [12]
"We focused on the improved conditions of employment in the written submission. Is the award seeking improved conditions of employment? Well, that's going to be a matter ultimately on the hearing of the application for a consideration of the terms of the award. Two things are to be said about that.
First of all, the document that you're considering at the moment is something that's proposed for discussion. If the Commissioner of Police has something to say along the lines of, well, you're seeking an improvement in conditions of employment, well, that can be discussed and it may well be that the final relief sought will be different from the association's point of view. It may not and then it will be a case of the Commission to determine whether in exercising its discretion to make the award or to grant some other relief under the Act it's influenced by the nature of the claim being sought."
I do not consider that the fact that the Proposed Award may have been presented as a draft for discussion overcomes cl 2 of the Current Award. It remains a claim for improved conditions of employment and these proceedings, at least in part, are being maintained to press that claim. Consistent with cl 2 of the Current Award the Commissioner of Police should not be required to engage in the "discussions" to which Mr Slevin referred during the term of the Current Award.
In all of the circumstances I find that the Association's claim for the Proposed Award is advanced in contravention cl 2 of the Current Award. Consistent with the authorities referred to above, it would be contrary to the Commission's usual approach to allow for the claim to be maintained during the term of the Current Award.