Police Association of New South Wales (obo Alchin) v Commissioner of Police

Police Association of New South Wales (obo Alchin) v Commissioner of Police - [2023] NSWIRComm 1003 - NSWIRComm 2022 case summary — Zoe

Factual background

SC Alchin commenced employment with the NSWPF on 25 October 1992. He is currently attached to the Intelligence Operations, Crime Squad Support, State Intelligence Command. He occupies a full-time position.
On 27 May 2003 SC Alchin suffered a workplace injury to his cervical spine, right elbow and right knee. The injury to his spine was misdiagnosed initially as a soft tissue injury, and he attempted to manage the pain associated with that injury through medication. Following further medical testing in November 2013, SC Alchin's injury was diagnosed as an osteochondral bar at C5/C6. He underwent a cervical spinal fusion on 27 May 2014, which resulted in him taking approximately eight months off work.
Following his return to work in February 2015, SC Alchin had fluctuating capacity to work. This ranged from several periods during which he had no capacity, to being cleared during some periods to work 10 hours a day, four days a week. SC Alchin's capacity stabilised to a degree in September 2019, after which he was until November 2021 declared fit to work 10 hours a day, two days a week. During this period there were three occasions on which SC Alchin had no capacity to work, although one appears to have been consequential to treatment he had received and all were of reasonably short duration.
In November 2019 SC Alchin commenced treatment with a psychologist. He was diagnosed as suffering from an adjustment disorder and depressed mood associated with his neck pain.
There was a large volume of material in the evidence from numerous medical practitioners who had treated and/or examined SC Alchin. There were some differences of opinion expressed by those practitioners, particularly in relation to SC Alchin's prognosis and fitness for work. However, it seems to have been agreed that his psychological recovery was dependent, at least in part, on the resolution of the pain associated with his spinal injury.
It must be acknowledged that SC Alchin actively and diligently explored and underwent alternative treatments in the hope of managing his pain. Despite these treatments, the preponderance of medical opinion throughout 2020 and 2021, including from SC Alchin's treating practitioners, was that an upgrade of his capacity of 10 hours a day, two days a week was unlikely, much less a return to full-time capacity.
In approximately November 2020 SC Alchin was referred to the NSWPF Deployment and Transition Unit for consideration as to whether he could be deployed to another position within the NSWPF that could accommodate his medical restrictions. The referral was not accepted, on the basis that those restrictions could not be accommodated.
Several months later, Superintendent ("Supt") Amanda Hancock, the Commander of Intelligence Operations, State Intelligence Command (then Acting Superintendent) decided to refer SC Alchin to the Deployment and Transition Unit for consideration of medical retirement. She informed SC Alchin of this decision in a meeting she held with him on 1 April 2021. The referral was confirmed in a letter from Supt Hancock to SC Alchin dated 4 May 2021.
SC Alchin sought the assistance of the Association, which on 18 May 2021 wrote to Supt David Driver, the Commander, Safety Command, objecting to SC Alchin's referral to the Transition Unit. In a letter in reply dated 26 May 2021, Supt Driver confirmed that the medical retirement process in respect of SC Alchin would continue.
In or about May 2021, Gavin Wood, who was then the Acting Assistant Commissioner of the Human Resources Command, [1] received a recommendation from the Deployment and Transition Unit to medically retire SC Alchin. Accompanying the recommendation was a "Medical Retirement Review bundle", containing the documents said to support the recommendation.
On 2 June 2021 the Association wrote to Asst Commissioner Wood. The letter set out in detail SC Alchin's submissions, and the Association's representations, as to why the medical retirement of SC Alchin should not proceed.
Asst Commissioner Wood determined that prior to making a decision as to whether he should be medically retired, SC Alchin should undertake a period of three months in the Deployment Unit to determine whether he could be redeployed to another position in the NSWPF. A subsequent request by the Association to extend the period to six months was not accepted.
On 4 August 2021 SC Alchin made an application "to enter into a part time leave without pay agreement for 20 hours per week, pending any ability to increase [his] working hours following my medical procedures and rehabilitation efforts". [2] In his application, SC Alchin suggested that the NSWPF could "job share the rest of my position" - that is, the hours beyond which those he could perform within his medical restrictions. The application was not approved.
On 12 October 2021 Sergeant ("Sgt") Alliprandi, a Deployment Officer in the Workforce Safety Command, reported that "the deployment process has concluded without successfully identifying a permanent, alternate position that could be reasonably adjusted to accommodate [SC Alchin's] medical requirements". [3] SC Alchin's medical retirement file was returned to Asst Commissioner Wood.
Asst Commissioner Wood decided to medically retire SC Alchin pursuant to s 94B of the Police Act. This decision was conveyed in a letter from Asst Commissioner Wood to SC Alchin sent on 21 October 2021. The letter informed SC Alchin that his last day of service with the NSWPF would be 11 November 2021.
On 1 November 2021 SC Alchin obtained a WorkCover NSW Certificate of Capacity clearing him to work for 10 hours a day, three days a week for the period 5 November 2021 to 6 December 2021. The certificate requested that he be rostered on particular, nominated days in that period.
On 3 November 2021 the Association wrote to Asst Commissioner Wood. The letter set out the basis on which the Association opposed SC Alchin's medical retirement, including that the requirements of s 94B of the Police Act had not been met. The letter enclosed the Certificate of Capacity dated 1 November 2021. The Association requested that Asst Commissioner Wood "take immediate steps to withdraw the proposed medical retirement of Senior Constable Alchin", failing which the dispute would be notified to the Commission "or any other court or tribunal without any further notice". [4]
In a letter in reply to the Association dated 4 November 2021, Asst Commissioner Wood confirmed that his decision to medically retire SC Alchin stood.
On 5 November 2021 the Association wrote to Deputy Commissioner Karen Webb (as the Police Commissioner then was), stating that "the medical retirement decision that has been incorrectly made should be immediately withdrawn". [5] Consistent with the Association's letter to Asst Commissioner Wood on 3 November 2021, the Association foreshadowed the commencement of proceedings, including in the Commission, if its request was not met.
SC Alchin applied for and was granted a period of leave to extend his last day of service.
On 15 November 2021 the Association filed the Notification. The relief sought by the Association included an interim order that the Police Commissioner "not dismiss (medically retire) Senior Constable Jeremy Alchin pending the determination of these proceedings". In resolution of the application for an interim order, the Police Commissioner agreed not to effect the medical retirement pending the determination of the dispute. Consequently, SC Alchin remains engaged with the NSWPF.
SC Alchin has continued to explore treatment for his condition. As a further pain control measure, he had a spinal cord stimulator implanted on 2 September 2022. The Association tendered into evidence a number of WorkCover NSW Certificates of Capacity, the effect of which was to certify that SC Alchin maintained a capacity to work 10 hours a day, three days a week throughout 2022.

[4]

The relief sought by the Association

In its written submissions dated 11 February 2022, the Association described the relief it sought in these terms: "56. The Notifier requests the Commission make the following Orders in resolution of the dispute: a. The NSWPF retract the threatened dismissal of Senior Constable Alchin, outlined in its letter of 21 October 2021, and implement a recovery at work plan in accordance with its obligations to Senior Constable Alchin as an injured worker. b. The NSWPF comply with its processes contained within the Standard Operating Procedures for Managing the Deployment of Injured Police Officers Deployment by allowing Senior Constable Alchin to continue to work in role he performed prior to the decision to medical [sic] retire him."
The Association submitted that the orders were authorised by ss 136(1)(c) and 136(d) of the Industrial Relations Act. The former provides that the Commission may, in arbitration proceedings, "make a dispute order under Part 2". That Part includes s 137(1)(c), which empowers the Commission to "order an employer not to dismiss employees in the course of the industrial dispute if the employer has threatened to do so". Section 136(d) empowers the Commission to "make any other kind of order it is authorised to make (including an order made on an interim basis)". The Association submitted that such an order would include one pursuant to s 89(7) of the Industrial Relations Act that SC Alchin not be dismissed.
There was no challenge to the Commission's jurisdiction to make an order that SC Alchin not be medically retired. Despite this, I have some reservations as to the availability of s 137(1)(c) to provide that relief. I deal with this at [83]-[88] below.
There was some debate during the arbitration as to whether the Commission had the power to make the other orders sought by the Association. In oral submissions, Tony Slevin of Counsel, who appeared for the Association, submitted that s 89(8) of the Industrial Relations Act - which provides that an order under the section "may be made on such terms and conditions as the Commission determines" - authorised the making of the balance of the relief sought. In the alternative, Mr Slevin submitted that to the extent that the Commission had concerns as to its powers to make the orders sought beyond that preventing SC Alchin's medical retirement, the Association would be "content with a recommendation". [6]

[6]

Characterisation of the dispute

The Police Commissioner drew my attention to Unions NSW v Carter Holt Harvey Wood Products Australia Pty Ltd (2006) 149 IR 361; [2006] NSWIRComm 2 ("Carter Holt Harvey") in which the Full Bench of the Commission observed: "12. In Sydney Water Corporation and Australian Services Union (New South Wales and Australian Capital Territory Branch) [2005] NSWIRComm 305 the Full Bench of the Commission gave consideration to the operation of s 137 in the following terms: … 36 While we agree that the tests formulated in Castlemaine Tooheys as adopted in Hill (on the submissions of both parties) offer some useful guidance for the exercise of power to grant interim orders, it would be wrong to apply, strictly and inflexibly, what are essentially private law and equity principles to the full range of industrial disputes under Chapter 3 of the Act, many of which fall into the realm of a jurisprudence not only more closely aligned to public law but having its own particular features. Industrial disputes may cover a spectrum from what is essentially an isolated, ordinary unfair dismissal case, to an industrial dispute in which dismissals or threatened dismissals are subsidiary, and then to a full-blown collective dispute involving stoppages, lock-outs, and mass dismissals. Across most of the spectrum, there will be factors at play which cannot be accommodated by the Hill tests, and the further the situation approaches the collective dispute at the end of the relevant spectrum, the more strained the application will become. The Hill tests will usually be applicable to applications brought under s 89(7) of the Act. 37 The Commission, in using its powers under the Act to conciliate, arbitrate and generally facilitate the resolution of industrial disputes, is engaged in an undertaking considerably removed from the adjudication of individual civil grievances. In furthering the objects of the Act (including the promotion of efficiency and productivity in the economy of the State and providing for the resolution of industrial disputes in a prompt and fair manner with the minimum of legal technicality), it is vital that the Commission recognise the broad discretion granted by the Act to fashion appropriate relief by reference to the merits of the industrial dispute itself and the steps necessary to resolve it. This will involve a variety of considerations, some of which may include those deriving from private litigation, but more usually will include the public interest in managing the industrial dispute in a fair and just manner with minimum disruption and disputation. 13 The Full Bench's observations in Sydney Water, particularly at [37], highlight important differences between the Commission's powers under s 137 and its powers in relation to unfair dismissals under Pt 6 of Ch 2 of the NSW Act. Section 137(1)(b) provides the Commission with the power to act quickly in dealing by arbitration with an industrial dispute where the Commission determines that orders under s 137(1)(b) are necessary in order to resolve the dispute or to assist in resolving a dispute. It may be, for example, that employees have been dismissed in the course of an industrial dispute and the Commission takes the view that in order to resolve the wider dispute it is necessary to make orders reinstating the employees. Depending upon the circumstances of the dispute, there may be no need for the Commission to consider questions of fairness (whether the dismissal was harsh, unreasonable or unjust), as the Commission would be required to do under Pt 6 of Ch 2. … 14 That observation was made in respect of interim dispute orders, but we consider the principle remains the same for final orders (as does the reasoning of the Full Bench set out in paragraph [12] above). Collective nature of industrial disputes 15 As we have noted, unlike the relevant provisions in Pt 6 of Ch 2 of the NSW Act, there is no requirement in s 137 to make a finding that a dismissal was harsh, unreasonable or unjust before orders may be made providing relief, although in some cases a finding of that kind (whether preliminary, or otherwise) may be applicable. Moreover, an industrial dispute under the NSW Act will at least have some collective ingredient or characteristic beyond an individual grievance or claim. That is to say, an industrial dispute will extend beyond merely the grievance of an individual employee and will exhibit a concern or involvement of an industrial organisation of employees, and/or an employer or employers, and/or a State peak council representing a collective of unions or employers. This is to be contrasted with Pt 6 of Ch 2 of the NSW Act which, although enabling an industrial organisation of employees to make application on behalf of an employee for a remedy in respect of an alleged unfair dismissal (s 84(2) and (3)), is essentially designed to accommodate applications by individual employees. Indeed, individuals make the great majority of applications. … 18 The term industrial dispute in itself connotes the industrial and collective flavour of the issue. This is reinforced by the definition of industrial dispute in the Dictionary to the NSW Act… … 22 An industrial dispute, by definition, may, of course, relate merely to a question or difficulty. And it may involve a dispute as to a dismissal of an employee simpliciter (see s 6(2)(e)). It will often be the case, however, that the dismissal of an individual employee which is the subject of the notification of an industrial dispute pursuant to s 130 of the NSW Act will involve substantive collective ingredients because of a broader concern amongst fellow employees and/or the employee's union who oppose or question the dismissal. Such collective concern may, for example, arise from the reasons given for the dismissal because the rationale for the termination may have some broader significance for the members of a union (see Sydney Water), or because a dispute settlement procedure arising out of earlier collective bargaining or award making processes provides for the resolution of such matters. This concern may or may not manifest itself in industrial action (the definition of industrial dispute specifically contemplates a threatened dispute or a dispute which is likely to give rise to industrial action). Even if it does, s 137 may be employed to cause the industrial action to cease. Section 137(1)(b) provides the Commission with the necessary power to deal with the dismissal aspect of such a dispute. Genuineness of dispute 23 One issue that we have found it necessary to consider in this matter is the genuineness of the industrial dispute. If the dispute was manufactured simply to test the issue of whether this Commission had the power under s 137(1)(b) to reinstate an employee whose employment is covered by a federal award, a real question arises as to the proper characterisation of the matter before us; is it an industrial dispute we are dealing with or in reality an unfair dismissal? While it is clearly within the purview of the Commission's power under s 137(1)(b) for an unfair dismissal case to be dealt with in a collective dispute, it would generally be inappropriate for the Commission to exercise that power in relation to an unfair dismissal simpliciter with no collective element." (Bold emphasis added)
Mr Hodgkinson submitted that "this is in fact a dispute notification limited to the consideration of the circumstances of Senior Constable Alchin and the determination to have him medically retired". [7] He further submitted: [8] "Now, what we say here, Commissioner, is that you do have, in reality, an unfair dismissal [simpliciter] and that whilst you have the power to deal with it, it may not be appropriately described as a genuine industrial dispute. It is, in reality, an unfair dismissal claim."
The Police Commissioner contended that, consistent with the observations of the Full Bench in Carter Holt Harvey, the Commission as a matter of discretion ought to decline to exercise its powers under ss 136 and 137 of the Industrial Relations Act to resolve what was an individual unfair dismissal claim.
The Association sought to characterise SC Alchin's circumstances as falling within a broader dispute between the parties as to the Police Commissioner's approach to the application of s 94B of the Police Act, and her compliance with legislative obligations and relevant policies and procedures. In essence, these broader concerns were said by the Association to have been exemplified by the manner in which SC Alchin had been treated.
In his opening submissions, Mr Slevin referred to the Association having "an ongoing concern about the treatment of police officers in medical retirement circumstances". [9] He submitted: [10] "Our approach Commissioner, is that your powers under the dispute settling provisions of the Act are broad. That you can take into account all of those matters, as to the availability of other remedies, for example, but you can get to the heart of the matter, the concerns that the Association has, the treatment of its particular member, by making the sorts of orders that we seek, the sorts of orders that are otherwise available to you, as identified in s 136 and 137 and that by taking this broader approach and by taking an approach that is proactive, the Association is not only doing right by its member, but presenting the most efficient and fair resolution of the circumstances that it's faced with and that's what the nature of the jurisdiction in this place is and so that matters can be dealt with, with a lack of technicality, with regard to the merits of the case, a good conscience, equity and the like."
In his closing oral submissions, Mr Slevin again referred to these proceedings as forming part of a broader dispute between the Association and the Police Commissioner. He submitted: [11] "You see the nature of this dispute isn't just about Senior Constable Alchin. His circumstances crystallise or present a crucible in which the concerns about the way the various policies, indeed compliance with the workers comp regime, are ventilated…"
I am not persuaded that the case presented by the Association demonstrates the "broader dispute" for which it contended. To explain this conclusion, it is necessary to consider the case that the Association has advanced.

[7]

The dispute as described in the Notification

It is difficult to construe the Notification as doing more than raising a dispute which is specific to SC Alchin. The Notification included the following: "8. This notification involves the threatened dismissal of an employee, and the Notifier will be seeking orders in the dispute hearing of: a. An Interim Order that the Commissioner of Police not dismiss (medically retire) Senior Constable Jeremy Alchin pending the determination of these proceedings. b. An Order that the Commissioner of Police not dismiss (medically retire) Senior Constable Jeremy Alchin as threatened in the letter from the NSWPF of 21 October 2021. c. An order that the Commissioner of Police provide suitable employment to Senior Constable Jeremy Alchin." (Emphasis in original)
The Notification annexed a document marked "Schedule A", which at par 3 describe the dispute between the parties. It is worth reproducing the entirety of that paragraph: "3. The Association and the Commissioner of Police are in dispute over: a. The decision made pursuant to Section 94B Police Act 1990 (NSW) in respect to two aspects, the first relating to normal duties which we say he is performing and can continue to perform his normal duties. The second aspect relates to the permanency of his injury, which has been demonstrated by way of recent medical evidence that his capacity has not stabilised and has recently increased from 20 to 30 hours. This is further evidenced by in commentary by his treating Doctors in mid 2020 who were indicating that should a viable medical option become available this may provide a long term/permanent solution to Jeremy's physical injury We say the conditions required under Section 94B Police Act 1990 (NSW) are not met relating to his normal duties and his injury not being permanent. b. The failure by the NSW Police Force to comply with its obligations under s 49 of the Workplace Injury Management and Worker's Compensation Act 1998 (the WIM Act), the NSWPF Injury Management Procedures, and Standard Operating Procedures for Managing the Deployment of Injured Police Officers to provide suitable employment to injured officers, such as Senior Constable Alchin, who continue to be referred for consideration of medical retirement, in circumstances where the officers nominated treating Doctors support for the officer's return to work; c. Senior Constable Alchin's purported medical retirement, where it is purported, he has reached Maximum Medical Improvement (MMI), however recent medical evidence strongly suggests he has not reached MMI. The Commissioner has failed to afford his continued employment with reasonable adjustment in his normal role/duties His current capacity, and particularly, the recent increase in his hours, from 20 hours per week to 30 hours per week, warrants his return to work under a new Recovery at Work Plan within his usual current role. The advice of his medical professionals supports his continued retention in the workplace performing his normal duties. He should therefore be afforded the ability to retain his employment, with the increased hours he is now certified as being capable of with the NSWPF applying a reasonable adjustment in terms of hours.; and d. Senior Constable Alchin has continued to work and remained in the workplace performing his normal duties and has demonstrated his ability to discharge all the functions of his role. He has performed this work up until 11 November 2021. Despite written representations from the Association the NSWPF refused to withdraw his medical retirement. The decision of the NSWPF to not reasonably modify his position (8 hours less than full time) is in breach of the Standard Operating Procedures for Managing the Deployment of Injured Police Officers. e. The Association contends the threatened dismissal of Senior Constable Alchin is both procedurally and substantively harsh, unjust, and unreasonable." (Reproduced verbatim)
The reference in par 3b. in Schedule A to "injured officers, such as Senior Constable Alchin" is the only reference in the Notification that might allude to a wider, collective dispute between the Association and the Police Commissioner. Even then, while the paragraph raises matters of general application, namely s 49 of the Workplace Injury Management and Workers Compensation Act 1998 ("WIM Act") and relevant policies and procedures, the Commission was asked to consider those factors only in relation to SC Alchin. In all other respects, the Notification refers to only to SC Alchin's circumstances. The relief sought by the Association is specific to him. It is relevant that par 3e. in Schedule A adopts the language of unfair dismissal contained in s 84 of the Industrial Relations Act.

[8]

The Association's evidence

The Association relied on two statements of Aleksandar Boromisa, an Industrial Officer employed by the Association, dated 11 February 2022 and 28 July 2022 respectively. Mr Boromisa deposed as to his experience with and knowledge of the policies and procedures operating within the NSWPF regarding the management of injured officers, and related legislative obligations under the Police Act and workers compensation legislation. He described the efforts made by the Association from 15 December 2020 to advocate for SC Alchin to secure his ongoing employment with the NSWPF.
Mr Boromisa's evidence included correspondence which the Association had sent to various senior officers in the NSWPF on behalf of SC Alchin, including that already referred to above. In that correspondence, and in his evidence in these proceedings, Mr Boromisa expressed the opinion that the NSWPF was not complying with, or had not complied with: 1. s 94B of the Police Act; 2. s 49 of the WIM Act; and 3. the NSWPF Injury Management Procedures, the NSWPF Standard Operating Procedures for Managing the Deployment of Injured Police Officers, the NSWPF Part Time Work for Police Officers Policy and Guidelines and the NSWPF Flexible Work Arrangements Manual.
There is little evidence, however, that these concerns extended beyond SC Alchin's particular circumstances. In this regard, Mr Slevin drew my attention to a letter from Mr Boromisa to Inspector Allison Fenwick dated 24 December 2020, in which Mr Boromisa stated: [12] "We have brought a similar example to your attention previously from this Command. Unfortunately, it appears that this practice continues."
Mr Slevin invited me to closely review the other evidence led by the Association which he asserted disclosed the "broader dispute" in which SC Alchin's position came to be considered. I have taken up that invitation, but am not persuaded that the evidence discloses a dispute beyond that relating specifically to SC Alchin.
In his letter to Supt Driver dated 18 May 2021 (see [12] above), Mr Boromisa stated: [13] "The Medical Retirement Review Form which has been agreed as settlement of industrial dispute Police Association of NSW v Commissioner of Police - (Snowden and Hill) NSWIRC No 2019/00258976 requires the Transition Unit to consider and comment upon several aspects relating to deployment and their duties… This form demonstrates the role that the Transition Unit is required [to] undertake and to consider all of those aspects before the file is accepted for the consideration of Medical Retirement by the Delegate. This issue further highlights the conflict in the same position/officer exercising the functions of the Deployment Unit and Transition Unit as their functions are not appropriately being scrutinized [sic] by another person and a file is simply going from one hand to the other hand with two different hats on, the members of our 2021 Biennial Conference passed a motion objecting to this conflict. In summary, we believe that there is no valid reason for the referral of SC Alchin to the Transition Unit and that the referral does not comply with the required agreed process between the parties." (Emphasis in original)
The "conflict" to which Mr Boromisa referred in his letter of 18 May 2021 was also raised (in relevantly similar terms) in the letter that he sent to Asst Commissioner Wood on 2 June 2021 (see [14] above). In that letter Mr Boromisa also stated: [14] "The PANSW views this response from the Commander Workforce Safety as inadequate and does not properly address the issues genuinely raised objecting to the medical retirement and questioning the role of Deployment in examples such as these. … We have raised in this correspondence serious structural issues where various parts of the NSW Police Force have failed to perform their functions and have placed our member in an unnecessarily stressful situation having to worry about the future of his employment and his livelihood, and have failed to engage with the PANSW in good faith dispute resolution. …"
Taken at their highest, the extracts from the letters of 24 December 2020, 18 May 2021 and 2 June 2021 referred to above allude to concerns held by the Association as to the approach taken by the Police Commissioner in the deployment and medical retirement of injured officers, and in her engagement with the Association in that regard. However, similar to the Notification, the correspondence from the Association only raises those concerns in the context of SC Alchin's situation.
The letters from which the extracts above are taken total approximately 16 pages, not including attachments. The balance of their contents relate only and specifically to SC Alchin, including contentions as to whether the NSWPF had met its legislative and other obligations to him. The only outcome sought by the Association was that the medical retirement review process in respect of SC Alchin not proceed. The Association made no request or proposal that might be directed towards addressing any systemic or collective issues that it may have had.
At [20] and [22] above I refer to correspondence from the Association to Asst Commissioner Wood and (then) Deputy Commissioner Webb on 3 and 5 November 2021 respectively. I can discern nothing in that correspondence which suggests that the Association had any concerns beyond seeking to prevent the medical retirement of SC Alchin, given the particular circumstances of his case. Once again, the Association sought no other outcome than that the medical retirement not proceed.
Mr Boromisa deposed that he was "aware of two recent disputes between the Association and the Commissioner of Police over the treatment of officers who have been referred for medical discharge". [15] Each of those disputes had been notified to the Registrar pursuant to s 130 of the Industrial Relations Act. Mr Boromisa's evidence went no further than reporting on the outcome of one of those disputes and the status of the other. He did not expressly depose that the two other disputes were indicative of an ongoing dispute between the Association and the Police Commissioner regarding the treatment of officers who have been referred for medical retirement, which extended beyond SC Alchin's circumstances.
The first dispute to which Mr Boromisa referred involved a notification brought by the Association seeking to prevent the medical retirement of two officers, Sgt Snowden and SC Hill. That was a matter over which I presided. There are two observations to make about that matter.
First, I determined to make interim orders to prevent the medical retirement of either officer pending the determination of the proceedings: Police Association of New South Wales v Commissioner of Police [2019] NSWIRComm 1076. The Police Commissioner did not in those proceedings raise the arguments summarised at [31] above. I observe that there was, in any event, a collective element in respect of that matter. In addition to the relief sought in respect of Sgt Snowden and SC Hill, the Association sought the making of an award setting out the procedural requirements to be followed prior to an officer being medically retired: see Police Association of New South Wales v Commissioner of Police [2020] NSWIRComm 1018 at [4]-[10].
Second, Mr Boromisa deposed that the proceedings were discontinued following, amongst other things, "resolution of the issues raised about how the procedures were followed". [16] He stated that this resolution involved agreement being reached between the NSWPF and the Association "on the process for consideration of medical retirement or medical retirement review". [17] I note that this "settlement" was also referred to in Mr Boromisa's letter to Supt Driver of 18 May 2021 (see [46] above). Mr Boromisa annexed to his second statement a flowchart setting out the agreed process. While the award initially sought by the Association in the proceedings involving Sgt Snowden and SC Hill was not made, the evidence suggests that the "collective" concern raised by the Association in that dispute had been addressed.
In the present matter, the Association has not sought to revisit that procedure. Its assertion is no more than that the Police Commissioner has failed to follow it properly in its dealings with SC Alchin.
The second dispute to which Mr Boromisa referred involved a notification concerning the proposed medical discharge of Detective Senior Constable Lisa Barnett. The evidence offers no insight into the matters in contention in those proceedings.
The Association relied on three statements of SC Alchin, dated 11 February 2022, 28 July 2022 and 14 October 2022. A large number of documents were exhibited or annexed to those statements. In his evidence, SC Alchin traversed his medical history and the process culminating in the decision to medically retire him. He deposed as to the extensive efforts he had made, and was continuing to make, to recover his fitness in the hope of returning to full time employment. This included undergoing new therapies and treatments as they became available. None of this, however, is indicative of a dispute between the Association and the Police Commissioner that extends beyond SC Alchin's situation.
The Association also relied on a statement of Ashley Stokes, a Field Organiser Specialist employed by the Association. His evidence traversed the nature of the work performed by intelligence analysts. It has no bearing on the characterisation of the nature of the dispute before the Commission.
In short, there is insufficient evidence to support Mr Slevin's contention that the Association holds an "ongoing concern about the treatment of police officers in medical retirement circumstances".

[10]

Conclusions

On the evidence available to me, the primary, if not only, concern of the Association in these proceedings is to prevent the medical retirement of SC Alchin. Its contentions that the NSWPF was failing to meet its legislative, policy and other obligations to him were premised on his particular circumstances. The occasional references in the Association's evidence to concerns held in respect of other situations do not raise the present case beyond what is essentially an individual claim.
That these proceedings are peculiar and confined to SC Alchin is emphasised by the relief sought by the Association. It is confined to securing his ongoing employment. There is no order sought which would aim to correct some systemic issue in the management of injured officers.
I recognise that it may well be assumed that an industrial organisation such as the Association might have concerns for its membership more generally if the Police Commissioner was acting in a manner inconsistent with applicable policies and procedures, particularly those which had been agreed as the result of earlier industrial proceedings, and with her industrial and legislative obligations. However, that is not the case which the Association has presented.
I accept the Police Commissioner's submissions that this dispute is properly to be characterised as an unfair dismissal case simpliciter. The case advanced by the Association does not contain "some collective agreement or characteristic beyond an individual grievance or claim" as referred to in Carter Holt Harvey (at [15]). The observations of the Full Bench in that case, particularly at [23], suggest that "it would generally be inappropriate" for the Commission to exercise its powers under Ch 3 of the Industrial Relations Act in such circumstances.
The remarks of the Full Bench in Carter Holt Harvey cannot, and should not, be read as rising to the level of a de facto jurisdictional impediment to the exercise of the Commission's discretion. At most, the Full Bench urged caution in the exercise of what is ultimately a discretionary jurisdiction. That said, the Full Bench's observations do call for circumspection.
In Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association [2022] NSWSC 1178 ("Nurses and Midwives"), Walton J traversed at length the powers of the Commission in relation to the conciliation and arbitration of industrial disputes, including the making of dispute orders. His Honour observed that Parliament intended that the making of dispute orders would be a last resort (at [36]) and that dispute orders are not lightly made by the Commission [at [38]). His Honour agreed (at [41]) with the observations of Boland J (as his Honour then was) in Bluescope Steel (AIS) Ltd v Australian Workers' Union (NSW) (2005) 138 IR 324; [2005] NSWIRComm 99 at [106(1)] that dispute orders are rarely made by members of the Commission, and that the making of a dispute order is a serious step given the consequences for contravention.
Nurses and Midwives concerned dispute orders which had been made in respect of threatened industrial action and his Honour's remarks must be considered in that context. However, those remarks do not sit comfortably with the approach that the Commission might take in granting relief under s 89 of the Industrial Relations Act if it finds a dismissal or threatened dismissal to be harsh, unreasonable or unjust. This again suggests circumspection when it comes to considering whether the Commission ought to intervene in proceedings brought under s 130 in a matter which is in all material respects confined to an individual claim.
I note also the Association's reliance on s 137(1)(c) of the Industrial Relations Act. That section empowers the Commission to "order an employer not to dismiss employees in the course of the industrial dispute if the employer has threatened to do so". While by no means conclusive, the use of the plural "employees" indicates an expectation that the industrial dispute in respect of which an order might be made ought to have a collective element.
I observe that in his oral submissions, Mr Slevin referred to a case involving Sgt Cooper, which was said to be similar to the present matter and in which Commissioner Murphy ordered that Sgt Cooper not be dismissed. At that time, the parties were waiting on the Commissioner's reasons.
On 13 January 2023, Commissioner Murphy handed down his decision in Police Association of New South Wales v Commissioner of Police [2023] NSWIRComm 1001. That case involved the threatened medical retirement of Sgt Kris Cooper. The decision provided reasons for an order and recommendations which had been made by the Commissioner on 8 June 2022. I assume this to be the case to which Mr Slevin was referring.
In those proceedings, Commissioner Murphy ordered, pursuant to s 136(1)(c) and (d) and s 137(1)(c) of the Industrial Relations Act, that "the Commissioner of Police not dismiss Sergeant Kris Cooper pursuant to the decision of 7 March 2022 to medically retire him": see decision at [6]. I acknowledge, as Mr Slevin alluded to, that this is an example of the Commission exercising its discretion in a manner consistent with the relief sought by the Association in this matter. However, there is nothing on the face of Commissioner Murphy's decision to suggest that the Police Commissioner had urged him not to exercise his discretion on the basis pressed before me. In any event, whether or not the Commission should exercise its powers under ss 136 and 137 is ultimately a matter of discretion: Nurses and Midwives at [37].
As a final observation on the characterisation of the dispute in this matter, I recognise that the language adopted by the Full Bench in Carter Holt Harvey leaves open the possibility of situations in which the Commission will find that, even in the case of an unfair dismissal case simpliciter, it would be appropriate to use its powers in s 137 of the Industrial Relations Act. For the reasons set out below, I am not persuaded that this is such a case.

[11]

The Police Commissioner's contentions

The Police Commissioner submitted that to grant the relief sought by the Association using the Commission's powers under ss 136 and 137 of the Industrial Relations Act would be to "skew" the scheme established by the legislature regarding the retirement of members of the NSWPF on medical grounds. That submission can be distilled into three elements.
First, s 94B of the Police Act is a specific power conferred on the Police Commissioner by the legislature. It must be respected and given work to do on its terms.
Second, an officer who is retired pursuant to s 94B, or threatened with such retirement, is entitled to bring a claim under Ch 2 Pt 6 of the Industrial Relations Act. If the dismissal, or threatened dismissal, is found to be harsh, unreasonable or unjust, the Commission may make an order under s 89 of the Industrial Relations Act. This includes an order under s 89(7) that an employee not be dismissed in accordance with a threat of dismissal.
The Police Commissioner submitted that the present dispute is a threatened dismissal case, dealt with specifically by s 89(7). The Association sought the relief permitted by that provision without bringing the case that would be required had an application been made pursuant to s 84 of the Industrial Relations Act. Mr Hodgkinson submitted: [18] "So that you would have to go through, to make an 89(7) order, you've really got to go through precisely the same considerations as you would need to go through for an unfair dismissal claim. If that's the case, why are we dealing with this as a dispute? If that's the case, we're dealing with one person in one set of circumstances. This should be brought properly as an unfair dismissal case and those considerations enlivened properly and the evidence address them properly. We really haven't heard much about the considerations in this case in relation to the medical retirement itself. Harsh, unjust or unreasonable… … You haven't, by either party, been addressed in any significant way on those matters. You might be able to glean some aspects of them from the material but that hasn't been the concentration of this case. The concentration of this case has been on the exercise of the power under s 94B. That's attacked by the notifier, clearly defended by my client, and I will come back to why the defence is appropriate, but the material that is now relied upon is not directed precisely at those questions, which would be the case if it was an unfair dismissal claim."
Third, the Police Commissioner drew my attention to Pt 8 of the Workers Compensation Act 1987. It was submitted that if the decision to medically retire SC Alchin were made, he would be entitled under s 241 of that Act to apply to the Police Commissioner for reinstatement to employment of the kind specified in that application, subject to producing medical evidence that he is fit for employment of that kind. Were the Police Commissioner not to reinstate him, he could apply to the Commission under s 242 for a reinstatement order. These rights would subsist for two years after the date of his medical retirement.
Mr Hodgkinson submitted: [19] "…If you look at the broad scheme that we have here, we have a number of things operating with overlap. We have the unfair dismissal provisions. Now, I've said quite a bit about that and I don't need to say any more. We have the dispute notification and resolution provisions, and again I've said quite a bit about that. If you were to, in the exercise of your discretion, not make any order in this case or recommendation, it doesn't leave Mr Alchin absent remedy. He can then still bring within the two year period from the time of his dismissal, which would only happen as a consequence of acting on the medical retirement decision, so it's a future date from today, he would have the two years. … So if you look at the scheme, you've got for persons who are not injured at all, you've got unfair dismissal rights. For persons who are injured, you've got a very specific power conferred on the police and you have to give operation to and benefit to that power, the power to medically retire, the power to say, 'Operational requirements within the police, given your medical circumstances and the likely permanency of those, are matters that cannot any longer be accommodated.' You've got those rights. You've got the rights to then, if there is a change of circumstance or a development in the - you've got a right to make an application for your job back. And at the same time you have to look at the workers compensation rights. A person who has a compensable injury, undisputed Mr Alchin has a compensable injury, has rights under the Workers Compensation Act. …But if that's your job and you can't do it, then you're entitled, with a compensable injury, to payments under that Act. The other thing that you're entitled to is a protection against dismissal for a six month period. If we consider that for a moment. As the Parliament have said, as most compensable injuries resolve relatively quickly, six months is an appropriate time to give an employee the opportunity to get back to full health and be able to do their work. But of course if you've got a compensable injury and you lose your employment or leave your employment after the six months, then you're entitled to compensation. You get a compensation payment pursuant to the Act, so far as you remain incapacity by that injury. So we have a scheme. We're protecting the people through the scheme and we then have a further scheme if you have lost your employment but you are now better within the two years, so we've - most cases resolve within six months, says the Parliament, but within two years we're going to give an extended period and you can apply for your job back. We look at the 241, 242 requirements, they're well known. They're weighted appropriately in favour of an applicant who has the relevant medical status to get their job back. So we've got a series of - what's sought to be done here is to skew all of that, is to change that, to pretend it doesn't exist and say, no, we've got a man who the Police Force have accommodated for many years with restricted capacity. The association doesn't tend to deal with that except in relation to the reference, which I will come back to, but it just talks about, 'You're not accommodating him into the future.' How long into the future? He has not been able to demonstrate and was not by 21 October able to demonstrate a capacity to get back to fulltime hours. True it is the work that he did, there's no complaint about it. I've said that in my opening, that we make no complaint about his work and we make no complaint about his ability to perform the various functions. It's just that he can't perform them for the relevant fulltime period and we've got an allocation of a fulltime job that he's occupying on a part-time basis. The requirement of the job is fulltime. As I say, no application for permanent part-time. The requirement of the job is fulltime. So what we're really talking about is the case of should he have this power extended that doesn't exist under the Workers Compensation Act, doesn't exist anywhere else, beyond many years into the future and for how long into the future, an undefined term? That, as I say, skews the schemes that Parliament have set up in a significant way, we would suggest." (Sic)
The Police Commissioner submitted that these considerations gave rise a question as to the nature of these proceedings. Mr Hodgkinson put it in these terms: [20] "The first question that's raised then is 'What is it that we are looking at?' What is it that the Commission is being asked in the challenge to the decision made under s 94B? Is it being asked to put itself in the position of the decision maker, that is reconsider all of the material available to the decision maker and make its own decision? We would say, 'No'. That would not be an appropriate use of the dispute power. The Commission is not asked to sit on appeal of that nature in these proceedings, nor should it be asked, nor could it be, we would respectfully submit, properly exercise its discretionary powers, if that was the position it took. Now, that's not to deny that there might not be circumstances that an individual could point to to say, through its association and I don't mean to undermine the association's role as notifier here, but a notifier might say, in a particular case, there was a glaring - let me give an extreme example - no medical evidence at all and, therefore, the power has not been properly exercised, or that the particular individual or indeed the notifier wasn't given a right to address the decision maker before the decision was made to advance any material; natural justice type material, I should say. But that's a review in the nature of an administrative law review, rather than an appeal. Now, in this case, you are asked to consider material that is post that which was available to the decision maker. The only way that that could be relevant to your considerations is if you are asked to sit as an appeal de novo. That is, you are now entitled not only to review, in the strict sense, the material; you are entitled to review additional material that could not have been and was not available to the decision maker under s 94B. And, with respect, that's not the scheme. That can't be the scheme. If that were the scheme, there would be appeal provisions that spelt that out. That cannot be the proper use of the dispute power in this case or in cases like it. The propositions that I'm advancing are broader, as you would readily understand, than the circumstances confronting Mr Alchin and I don't mean to either diminish those circumstances, nor do I mean to confine the submissions that I'm making to his particular circumstances. These are much more general considerations that I'm raising. But it cannot be the case, Commissioner, that you are to sit as the decision maker as though the decision hadn't been made and make your own decision. Minds might differ as to the strength of the material. We know that as part of the 94B considerations there are considerations beyond, that is not limited to, the medical considerations, considerations that can be influenced by the experience of the decision maker and experience, with respect, a Commissioner could not have. So, it can't be the proper exercise of power, nor permissible, for a notifier to ask the Commission to sit in the position of the decision maker and make its own decision. It can't be permissible to ask the Commission to act on material not available to the decision maker. The 94B decision is made. … … It can't be then that the proper exercise of the discretion and power is 'Oh look, I know that they made it over there and I know that they made it in good faith and the decision was made consistent with the material before them, but I've now got all of this extra material and that's something that I would take into account as the decision maker and, therefore, I determine the 94B decision.' That's the role of 241, 242, in the Workers Compensation Act. That's where that consideration, in the statutory scheme, is enlivened. The statutory scheme says, 'You've got two years. If you can come back and you can say to the Commission, "I want my job back because I'm capable of doing it", that's where you've got it.' Not within a dispute notification, but as you're asking the Commission to sit in this role as an appeal bench, either de novo or even in the strict sense and neither are permissible, we say, as a proper exercise of the discretionary powers under the dispute provisions."

[12]

The Association's response

Mr Slevin submitted: [21] "We take the approach that this dispute relates to matters that occurred before the s 94B decision, at the time the s 94B decision was made and the circumstances after. We say it's the whole circumstances of Senior Constable Alchin is relevant to our dispute. We're not here to seek an appeal of the s 94B, although we do challenge aspects of the decision making process. We say that's one of the considerations. You'll see in our written submissions we rely on a number of matters, s 49 of the WIMS [sic] Act, the policies and procedures of the Police Force not being adhered to, are all circumstances that go to the fairness of the treatment. We're not here to seek an appeal, as it were, under s 94B of the Police Act but we don't shy away from a challenge to the manner in which that decision was made."
The Association contended that it had a choice under the Industrial Relations Act between the commencement of unfair dismissal proceedings and the notification of a dispute under s 130, and it chose the latter. It stated that it was the "responsibility of the Commission" under that Act "to resolve disputes". [22] It drew attention to the requirement imposed by s 163(1)(c) of that Act that the Commission is "to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms". The Association contended that the Commission would be acting contrary to this requirement to decline to exercise its discretion in this matter, on the basis that SC Alchin could commence alternative proceedings in the future. Mr Slevin submitted: [23] "And so, if we were to come back and you can turn your mind to this, Commissioner, for the purpose of resolving this dispute, s 175 allows you as we know, to have a look at these provisions and say, well look, in all of these circumstances, I know that there are all of these legal rights that exist, and one of them is that next week Senior Constable Alchin can just make this application and the Commission is then going to be faced with the same sorts of issues that have been dealt with in these proceedings. We say that, and s 163 is quite on point on this, about dealing with disputes based on equity, good conscience and the merits of the case, you should resolve that question. You shouldn't be putting it off to the future. You should be resolving it here in these proceedings in a manner urged upon you by my client."
The Association disputed the Police Commissioner's contention that it had failed to address the matters that would require consideration in an unfair dismissal claim. In this regard, Mr Slevin submitted: [24] "The final matter, Commissioner, or actually two matters. One is that we haven't said anything about the usual principles that apply in an unfair dismissal matter in any event. We have. I addressed you this morning on that. We say no valid reason because s 94B wasn't met. Procedural fairness and the other matters that we raise in our written submissions are all typical unfair dismissal type arguments."
The submissions that Mr Slevin referred to as having been made "that morning" were as follows: "In terms of [94B], we've addressed that and that's at tab two of the material. We've addressed that in written submissions. In effect, the failure for the preconditions in [94B] to be met as a precursor to the question of the exercise of the discretion results in a finding that there's no valid reason for the dismissal, is another way to put it without even needing to go to whether it was a fair decision in the way the High Court describes those issues in [Cottle]. We also say there are procedural defects, and of course, both substantive and procedural matters are relevant when considering the issue of the dismissal of an employee. Included in the bundle is the case that is so often quoted in relation to procedural defects, being a substantive question in an unfair dismissal circumstance, included in the bundle is Australian Meat Holdings and [McLauchlan], so well known that I don't think I need to take you to it…"

[13]

Consideration

The conclusion that I have expressed above, that this dispute is properly to be characterised as an unfair dismissal case simpliciter, has implications as to the bases on which the Association relies for the orders it seeks. Put simply, I have some reservations as to whether s 137(1)(c) is available to the Association. Rather than SC Alchin having been threatened with dismissal "in the course of the industrial dispute", it was the threat of dismissal which gave rise to the dispute.
In this regard, the language of s 137(1)(c) stands in contrast to s 137(1)(b), which permits an order for reinstatement or re-employment for "any one or more employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute" (my emphasis). The absence from s 137(1)(c) of words anticipating an industrial dispute resulting from a threatened dismissal suggests that in cases such as the present one, the provision does not provide an avenue for relief.
Support for this proposition can be found in Australian Services Union and Sydney Water Corporation [2005] NSWIRComm 156, in which Boland J (as his Honour then was) observed: 65 On the face of it, s 136, in combination with s 137(1)(c), gives the Commission the power to exercise its discretion to order Sydney Water not to dismiss Mr Austin and Mr Bagala. The section, I think, owes its existence to the Parliament's concern, in introducing the Industrial Relations Bill 1995, that the Industrial Relations Act 1991 did not invest power in the Commission, in dealing with an industrial dispute, to reinstate or re-employ any one or more employees who were dismissed in the course of an industrial dispute or whose dismissal resulted in an industrial dispute, other than in accordance with the specific provisions dealing with unfair dismissals in Chapter 3, Part 8 of the 1991 Act: see Woolstar Pty Limited v Federated Storemen and Packers Union of Australia (New South Wales Branch) (1992) 45 IR 39; Hansard, Legislative Council, 23 November 1995, 3851. 66 It is likely that the Parliament's principal intention in providing for s 137(1)(b) and (c) was to provide the Commission with the means of dealing with situations where a dispute existed and in the course of the dispute employees taking industrial action in support of claims were either threatened with dismissal or were dismissed because of, or for reasons related to, the industrial action. A good example of that was the situation addressed by the Commission in Woolstar where the employer dismissed approximately 400 employees, members of the Federated Storemen and Packers Union of Australia, NSW Branch, in the course of an industrial dispute."
An appeal against the decision of Boland J was dismissed: Sydney Water Corporation and Australian Services Union (New South Wales and Australian Capital Territory Branch) [2005] NSWIRComm 305. The Full Bench (at [32]) agreed with his Honour's observations at [65] of the extract above. It offered no comment on [66].
Further, I note, without reproducing them, the observations of Commissioner McDonald in Fire Brigade Employees' Union of New South Wales v Industrial Relations Secretary of NSW on behalf of Fire and Rescue NSW (COVID-19 Vaccination Dispute) [2023] NSWIRComm 1004 at [149]-[154] and at [174]. In that case, the Commissioner concluded that the power under s 137(1)(c) cannot be exercised on a final basis so as to provide for permanent relief.
I acknowledge that the availability of s 137(1)(c) to provide the relief sought by the Association was not canvassed by the parties. I will therefore offer no concluded views in this regard.
However, were it to be found that s 137(1)(c) was not available, and noting the Association otherwise relies on s 136(1)(d), the Association would need to satisfy the Commission that an order ought to be made pursuant to the latter provision. As already observed, in this regard the Association contends that the orders its seeks are authorised by ss 89(7) and (8) of the Industrial Relations Act.
In an application under Ch 2 Pt 6 of the Industrial Relations Act, orders pursuant to s 89 become available on a finding by the Commission that the dismissal, or threatened dismissal, of an employee was or would be harsh, unreasonable or unjust. I agree with the Police Commissioner that this concept, and the principles that would generally need to be considered in a case brought under s 84 of the Industrial Relations Act, received virtually no attention in the case presented by the Association.
I acknowledge that the Notification at par 8 made reference to the dispute involving "the threatened dismissal of an employee". Paragraph 3e. in Schedule A to the Notification adopts the language of s 84 in its contention that the threatened dismissal of SC Alchin "is both procedurally and substantively harsh, unjust and unreasonable". However, the Association's written submissions did not traverse unfair dismissal principles. The only submissions made by the Association in this regard were those made by Mr Slevin at the hearing, as set out at [81]-[82] above.
The Association has not positively run the case that would be required under Ch 2 Pt 6 of the Industrial Relations Act. Instead, it seems to expect that the Police Commissioner (and the Commission) could glean from the evidence and submissions the matters that would support a finding that the threatened dismissal of SC Alchin would be harsh, unreasonable or unjust within the meaning of Ch 2 Pt 6. That is not sufficient.
With their knowledge and experience, the Police Commissioner's legal representatives might well be able to construct from the Association's evidence and submissions a case that might be put as to why the dismissal of SC Alchin would be harsh, unreasonable or unjust. The Commission could do the same, just as it could equally concoct a case that the Police Commissioner might run in response. However, it is not for the Police Commissioner or the Commission to anticipate (much less create) a case which might have been run by a party, but which was not. Further, the Police Commissioner has not been given the opportunity to respond to a case directly put as to why the threatened dismissal of SC Alchin would be harsh, unreasonable or unjust.
The case presented by the Association rests on broad notions of "fairness". This is reflected in the passage from Mr Slevin's oral submissions reproduced at [79] above. The approach called for by the Association would suggest that the Commission may make any order "it is authorised to make" if a notifier in proceedings brought under s 130 of the Industrial Relations Act establishes "unfairness" of some kind. Section 130 would, on that analysis, provide a vehicle by which, for example, relief may be granted under Ch 2 Pt 6 relying on amorphous notions of "fairness", without the notifier having to establish that a dismissal or threatened dismissal was or would be harsh, unreasonable or unjust. I do not consider that Ch 3 Pts 1 and 2 of the Industrial Relations Act ought to be approached on that basis.
In determining not to exercise my discretion in this matter, I have had regard to the fact that my decision does not leave SC Alchin without recourse. He would remain entitled to commence proceedings pursuant to Ch 2 Pt 6 of the Industrial Relations Act or under Pt 8 of the Workers Compensation Act.
I am acutely conscious of the obligations arising under s 163 of the Industrial Relations Act and the objects set out in s 3 of that Act, particularly to "to provide for the resolution of industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality" (s 3(g)). I admit to being attracted to the position advanced by the Association that, with proceedings already on foot, the Commission ought not put off resolving the dispute simply on the basis that other avenues may have been available to SC Alchin. I am reluctant to adopt an approach that would require the commencement of fresh proceedings to traverse the same facts and many of the same issues.
Despite this, and while holding some misgivings, I accept the Police Commissioner's submissions that to grant the relief sought by the Association would run contrary to the broader legislative framework that applies to people in the position of SC Alchin. I make several observations in this regard.
First, ss 3 and 163 of the Industrial Relations Act operate as part of, and must be construed within, the structure of that Act as a whole. The requirements on the Commission to eschew legal and other technicalities, and to act according to equity, good conscience and the substantial merits of a case, should not be seen as calling for an approach which is at odds with the scheme established by the legislature. In this regard I repeat my observations at [94] above.
Second, I recognise that the Police Commissioner is conferred with the power to medically retire injured officers under s 94B of the Police Act. The Commission should give proper recognition to that power: see Fire Brigade Employees' Union of New South Wales v Industrial Relations Secretary on behalf of Fire and Rescue NSW (In Orders Dispute) [2022] NSWIRComm 1016 at [29]-[31] and [42], cited with approval in Application for NSW Ambulance Safe Paramedic Crewing Award [2022] NSWIRComm 1037 at [111] to [112].
Third, the Police Act does not expressly provide an avenue for an appeal against, or a review of, a decision under s 94B. This is to be contrasted with ss 174 and 181E of that Act. An aggrieved officer may challenge their medical retirement, or threatened medical retirement, under Ch 2 Pt 6 of the Industrial Relations Act.
Fourth, to the extent that the Association urges the Commission to have regard to evidence arising after Asst Commissioner Wood's decision on 21 October 2021, it is tantamount to running an appeal against that decision. While the Association stated that it did not seek to appeal the decision of Asst Commissioner Wood, its approach requires the Commission to, for all practical purposes, stand in the shoes of the decision-maker. Otherwise, it is difficult to see the basis on which the Commission should take into account the evidence relating to events after 21 October 2021.
The Commission is not being asked to consider whether Asst Commissioner Wood's decision was harsh, unreasonable or unjust (as would be required in proceedings under Ch 2 Pt 6), but to determine whether on all of the evidence, including that which arose subsequent to the decision, it would be "fair" for SC Alchin to be medically retired. Presumably, the date of the Commission's decision, not that of Asst Commissioner Wood, is the time at which any unfairness would have to be assessed.
Fifth, the relief sought by the Association would see SC Alchin remain in his present role, subject to being placed on "a recovery at work plan in accordance with [the NSWPF's] obligations to Senior Constable Alchin as an injured worker". Putting to one side whether such an order would have sufficient certainty as to be enforceable, the proposed order is not limited in time. It contains no mechanism for review of SC Alchin's continued capacity to work. It would operate in seeming perpetuity. I accept the Police Commissioner's submissions that such an outcome is at odds with her statutory powers under s 94B of the Police Act, bearing in mind the rights (or potential rights) that SC Alchin has (or may have) to commence proceedings under Ch 2 Pt 6 of the Industrial Relations Act or to seek reinstatement to employment with the NSWPF under Pt 8 of the Workers Compensation Act.

At a glance

Court

Decision date

Source

Judgment (16 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (14)

Cited By (2)