Police Association of New South Wales v Commissioner of Police, NSW Police Force

Leave to appeal and appeal

Section 188 of the Act provides that an appeal to a Full Bench of the Commission may be made only with the leave of the Full Bench. The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted.
In Fraser v Commissioner of Fire and Rescue NSW [2022] NSWIRComm 1026 the Full Bench observed: "18. The applicable principles in deciding whether to grant leave are well settled and were summarised in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 at [10]-[11]. In summary: (1) an appeal under the Act is an appeal in the strict sense, and the Full Bench will only intervene to correct error; (2) leave will not be lightly or automatically granted, unless substantial issues of principle or law are raised, or there are otherwise wider implications for the jurisprudence of the Commission or the proper administration of justice; and (3) where an appeal primarily challenges finding of fact leave will rarely be granted."
If leave to appeal is granted, an appeal to a Full Bench "is not by way of a new hearing": s 191(1) of the Act. The Full Bench "cannot merely substitute its decision on the matter but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received": s 191(3).
Although the raising of a jurisdictional issue does not, of itself, establish a basis for the grant of leave, the nature of any jurisdictional issue raised will be relevant: Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381; Integral Energy v Allen (2001) 107 IR 456 at [13].
In the context of any discretion exercised by Commissioner Sloan, for the appeal to succeed, it is not enough that the Full Bench might have exercised that discretion differently. The Association must show that the Commissioner failed to properly exercise the discretion committed to him: Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 at [10], citing Mace v Murray (1955) 92 CLR 370 and House v The King (1936) 55 CLR 499.
As a general principle, leave to appeal will not be granted where there is no or insufficient practical utility in granting such leave: Wei Fen Xian and Rail Corporation New South Wales [2010] NSWIRComm 46 at [23]; Davies v Kyogle Council [2008] NSWIRComm 90 at [18]; Mullins v Director General, NSW Department of Education and Training [2006] NSWIRComm 258 at [20]; Australian Workers' Union, New South Wales v BlueScope Steel (AIS) Pty Ltd (2006) 151 IR 153 at [55].
There is little practical utility in granting leave in the present matter. The original proceedings arose out of a threatened dismissal of Mr Alchin. The relief sought in the original proceedings, was the removal of the threat of dismissal and the requirement that the Police Commissioner comply with the processes applicable to the deployment of injured police officers in the context of the position Mr Alchin occupied at that time. After the Decision was published, Mr Alchin's employment was terminated. Mr Alchin subsequently commenced and then discontinued, unfair dismissal proceedings in this Commission.
It has however, been accepted that leave to appeal may be granted even where there is no practical utility as between the parties, where there is a public interest in an erroneous decision being set aside: Nursing and Midwifery Board of Australia v HSK (2019) 1 QR 600 at [18]-[23].
The Association submitted that the appeal raises significant questions as to: whether an alleged lack of a collective element to a dispute provides a basis upon which the Commission could decline to make orders under Pts 1 and/or 2 of Ch 3; the approach to the characterisation of a dispute; and the manner in which the Commission should deal with an industrial dispute in which an industrial organisation seeks orders under s 136(1)(c), s 136(1)(d), s 137(1)(c) and s 89 of the Act with respect to the threatened dismissal of one of its members.
We agree the grounds of appeal raise significant questions about the approach to be taken when a registered organisation of employees notifies dispute proceedings pursuant to s 130 of the Act and seeks relief pursuant to s 136(1)(d) and/or s 137(1)(c) to prevent a single employee from being dismissed, which have implications for the jurisprudence of the Commission. Accordingly, we have decided to grant leave to appeal on this basis, despite the lack of practical utility in doing so.
The first ground of appeal is that the Commissioner erred by applying a wrong principle, namely, that it is not appropriate to make orders under Pt 1 of Ch 3 of the Act to prevent the dismissal of an employee unless an industrial dispute contains a collective element.
The first ground of appeal misapprehends the Decision. The Commissioner did not find that it is not appropriate to make an order under Ch 3 Pt 1 of the Act to prevent the dismissal of an employee unless an industrial dispute contains a collective element. Rather, the Commissioner decided that whether the dispute contained a collective element was a relevant matter to be taken into account in deciding whether to exercise his discretion to order the relief sought pursuant to s 137(1)(c).
The Association submitted the starting point with respect to the first ground of appeal is that the jurisdiction of the Commission to deal with an industrial dispute is not constrained by reference to a requirement that the dispute contain or be capable of being characterised as having a collective element. It submitted that where the Act specifically empowers the Commission to deal with any dispute about an industrial matter (including, consistent with s 6(e) of the Act, a dispute about the termination of employment of any person,) notified by an industrial organisation, there is no basis for the Commission to decline to deal with the matter because it lacks a collective component. The Association further argued that a lack of a collective character could not justify the discretionary refusal of any relief alone and of itself.
The Association submitted that the Commissioner was wrong to determine that Carter Holt Harvey suggests that 'it would generally be inappropriate' for the Commission to exercise its powers under Ch 3 of the Act in circumstances where a dispute does not contain some collective agreement or characteristic beyond an individual grievance or claim. The Association sought to distinguish Carter Holt Harvey on the basis that in that case the notifier was seeking "dispute orders" for the reinstatement or re-employment of an employee, in circumstances where the employee did not otherwise have standing to bring a claim for unfair dismissal under the Act. Accordingly, the Association submitted that this observation addressed specifically, and only, the exercise of the power under s 137(1)(b) to make dispute orders. The Association argued that the suggestion otherwise cannot be reconciled with the fact that s 137(1)(c) expressly deals with dismissal and s 136(1)(d) permits the Commission, in dispute proceedings, to 'make any other kind of order it is authorised to make' including an order under Pt 6 of Ch 2.
The Association submitted that this conclusion is supported by the Full Bench's reference in Carter Holt Harvey to Sydney Water Corporation and Australian Services Union (New South Wales and Australian Capital Territory Branch) (2005) 146 IR 388 (Sydney Water) which held that dispute orders may be made to reinstate an employee to resolve a dispute, without considering whether the dismissal was harsh, unjust, or unreasonable as would be required in relation to unfair dismissals pursuant to Pt 6 of Ch 2.
The Police Commissioner submitted that Commissioner Sloan's reliance upon Carter Holt Harvey was correct. She submitted at [13]-[15] of AS: "13. The Appellant seeks to advance the proposition that the relevant part of the decision in Carter Holt at [15] being: '... 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 ...' is to be limited by reference to the first sentence at paragraph [15] of that decision. 14. Such an approach ignores the operation of the word "Moreover" which appears at the commencement of the relevant aspect of that paragraph [15]. "Moreover" should be read to mean: beyond what has been said; further; besides. 15. It is evident, therefore, that the Full Bench in Carter Holt did not intend what was said in the extract set out at [13] above to be limited by the sentence coming before it. It should be read as a stand alone proposition and not limited in the way suggested by the Appellant."
The Police Commissioner submitted that the Association's attempt to distinguish Carter Holt Harvey at [23] was of no substance and it was accurately quoted by Commissioner Sloan and applied appropriately.
The Commission's jurisdiction to conciliate and arbitrate an industrial dispute is governed by the terms of the Act. There is no express constraint within the Act that the jurisdiction of the Commission or its capacity to order relief in an industrial dispute has a collective element. The historical context of industrial disputes needing to be 'group contests' arises from the constitutional constraints on the exercise of Commonwealth legislative power, and in particular s 51(xxxv) of the Commonwealth Constitution: Federated Municipal and Shire Council Employees' Union v Energy Australia (1999) 90 IR 311 at pp 321-322 (Energy Australia). There is no such constraint on the remit of the legislature in New South Wales: Monk v Dow Corning Australia Pty Ltd [1984] 2 NSWLR 485; [1984] AR (NSW) 291 at pp 305-306; David v Amalgamated Television Services Pty Ltd (1998) EOC 92-963; (1998) 81 IR 364 at p 385; Energy Australia at pp 322-323.
Section 130 of the Act enables a range of parties, including an industrial organisation, but not including an individual employee, to notify the Commission of an 'industrial dispute'. An 'industrial dispute' is defined in the Dictionary to the Act to mean a 'dispute (including a question or difficulty) about an industrial matter'. The term 'industrial matter' is defined in s 6(1) as "matters or things affecting or relating to work done or to be done in any industry or the privileges, rights, duties or obligations of employers or employees in any industry." Subsection 6(2) provides for examples of industrial matters, including, "(e) the termination of employment of (or the refusal to employ) any person or class of persons in any industry." Accordingly, a claim for reinstatement of an individual person involves an 'industrial matter' by definition. There is no requirement there be a broader collective concern or element for it to attain that status.
The scheme of the Act and, in particular Ch 3, emphasises the importance of the role of the Commission in attempting to resolve industrial disputes by conciliation: see ss 3(g), 132, 133, 134, 135. Section 136 empowers the Commission with a discretion to provide a range of remedies in the context of arbitration proceedings to resolve industrial disputes.
Section 137 of the Act provides for "Kinds of Dispute Orders" that the Commission is empowered to make in the context of an industrial dispute, by operation of s 136(1)(c) of the Act. A contravention of a dispute order is potentially a serious matter. Section 139 of the Act provides: 139 Contravention of dispute order (1) The Supreme Court, on application, must deal expeditiously with an alleged contravention of a dispute order. The application may be made by the person who applied for the order or any other person who was authorised to apply for the order. (2) Before dealing with an alleged contravention of the order, the Supreme Court is required to summon the person alleged to have contravened the order to show cause why the Supreme Court should not take action for the contravention. (3) The Supreme Court may, after hearing any person who answered the summons to show cause and considering any other relevant matter, do any one or more of the following - (a) dismiss the matter if it finds that the dispute order was not contravened or if it finds that the circumstances were such that the Supreme Court should take no action on the contravention, (b) cancel the approval of an enterprise agreement, (c) suspend or modify for any period all or any of the entitlements under an industrial instrument, (d) cancel the registration of an industrial organisation or take any other action authorised by Division 2 of Part 3 of Chapter 5, (e) impose a penalty on an industrial organisation or an employer as provided by subsection (4), (f) make any other determination that the Supreme Court considers would help in resolving the industrial dispute. (4) The maximum penalty that may be imposed on an industrial organisation or employer is - (a) except as provided by paragraph (b) - a penalty not exceeding in total $10,000 for the first day the contravention occurs and an additional $5,000 for each subsequent day on which the contravention continues, or (b) if a penalty has previously been imposed on the industrial organisation or employer for a contravention of an earlier dispute order - a penalty not exceeding in total $20,000 for the first day the contravention occurs and an additional $10,000 for each subsequent day on which the contravention continues. (5) Any such penalty may be recovered in the same way as a penalty imposed by the Supreme Court for an offence against this Act.
The comments made by the Full Bench in Carter Holt Harvey with respect to the relevance of the collective nature of a dispute are specific to the making of dispute orders. The principle has no application to the powers of the Commission pursuant to s 136(1)(d).
Carter Holt Harvey arose out of a referral to the Full Bench pursuant to s 193 of the Act to consider the power of the Commission to deal with an industrial dispute involving the dismissal of an employee whose employment was regulated by industrial instruments made under the Workplace Relations Act 1996 (Cth) (WRA). Specially, consideration was given to the power of the Commission to make a dispute order for the reinstatement or re-employment of the dismissed employee pursuant to s 136(1)(c) and s 137(1)(b), in circumstances where the employee could not invoke the Commission's power to order re-instatement or re-employment pursuant to s 89. The Full Bench did not consider the Commission's capacity to make an order pursuant to s 136(1)(d), namely, to make any other kind or order it is authorised to make. Unlike this matter, the dismissed employee in Carter Holt Harvey had rights in relation to unfair dismissal available to him pursuant to the WRA, but not the Act.
Carter Holt Harvey also considered the issue of the genuineness of the industrial dispute notified. It was put that the dispute was manufactured simply to test the issue of whether the Commission had the power to reinstate a dismissed person covered by federal industrial instruments: [23]-[29]. This was not an issue arising in this matter.
The Full Bench in Carter Holt Harvey, with reference to the decision in Sydney Water, highlighted the difference in the powers of the Commission under s 137 and its powers in relation to unfair dismissals under Pt 6 Ch 2 of the Act. To the extent the Full Bench referred to the collective nature of industrial disputes, it did so in the context of considering the Commission's powers to make dispute orders, again, pursuant to s 137 of the Act. The Full Bench found that the reasons the Commission may exercise its discretion to make dispute orders reinstating an employee in the context of an industrial dispute may be based on public interest considerations, beyond finding that the dismissal was harsh, unreasonable, or unjust: see [15] of Carter Holt Harvey.
The comments relied upon in the Decision from Carter Holt Harvey, read properly in the context of the Decision as a whole, were directed at the Commissioner's consideration of the availability of s 137(1)(c) as a basis to order the relief sought by the Association. So much is clear from: 1. Paragraph [68] of the Decision where Commissioner Sloan noted the Association's reliance upon s 137(1)(c) of the Act, stated: "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." 1. Paragraph [72] of the Decision where the Commissioner states that Carter Holt Harvey leaves open the possibility of a situation in which the Commission will find that, even in the case of an unfair dismissal case simpliciter, it would be appropriate to use the powers reposed in it by s 137 of the Act. 2. Paragraph [84] of the Decision where the Commissioner stated: "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."
We do not see error in the Commissioner's approach and application of the principle in Carter Holt Harvey.
Commissioner Sloan went on to consider separately the relief sought pursuant to s 136(1)(d) at [90]-[104] of the Decision. At [95] of the Decision the Commissioner found that the Association's case did not address the unfair dismissal criteria required to order the relief sought under the Act, stating that it instead relied upon amorphous notions of "fairness". We agree with Commissioner Sloan that the granting of relief pursuant to s 136(1)(d) in the context of Mr Alchin's circumstances would require a finding that the threatened dismissal was harsh, unjust, or unreasonable, given the Commissioner's finding that the matter was an unfair dismissal simpliciter, lacking a collective character. Commissioner Sloan determined not to exercise his discretion to grant relief pursuant to s 136(1)(d) (and hence pursuant to Ch 2, Pt 6) because, in summary: 1. Section 136(1)(d) could not be used to obtain relief pursuant to Ch 2, Pt 6, without establishing that a dismissal or threatened dismissal was or would be harsh, unreasonable, or unjust; 2. Mr Alchin had the ability to seek recourse, pursuant to Ch 2, Pt 6 and under Pt 8 of the Workers Compensation Act; and 3. due to the broader legislative framework, five aspects of which he outlined at [99] - [104].
The lack of a collective element did not factor into Commissioner's Sloan decision with respect to whether to grant relief pursuant to s 136(1)(d).
Commissioner's Sloan's remarks at [105] that, "in light of the observations of the Full Bench in Carter Holt Harvey and having regard to the broader legislative scheme, I do not consider it would be appropriate for the Commission to exercise its discretion to provide relief in these proceedings pursuant to its powers under ss 136 and 137 of the Industrial Relations Act" is simply a summary of the two different reasons he declined to grant relief under each section. In other words, the observations in Carter Holt Harvey regarding the need for a collective element indicated it would not be appropriate to make an order under s 137(1)(c); while the broader legislative scheme indicted it would not be appropriate to make an order under s 136(1)(d). His remarks do not substitute for the totality of the reasons that proceeded the paragraph as he made plain with the opening sentence of the paragraph: "For these reasons I have determined not to exercise my discretion to grant the relief sought by the Association."
For the above reasons we reject the Association's first ground of appeal.
We reject the Association's second ground of appeal, that the Commissioner erred by finding that the nature of the dispute did not establish a sufficient collective element. The Commissioner comprehensively considered the evidence and the respective arguments in the Decision and was entitled to conclude that the case was an unfair dismissal simpliciter. We are of the view that he was entitled to form that view based on the relief sought by the Association alone.
In the third ground of appeal, the Association submits that the Commissioner failed to consider the merits of the dispute arising from the proposed termination. It is evident that the Commissioner's decision to dismiss the original proceedings was not taken lightly and was based on the specific circumstances of the case. We can see no error in the approach he took in dismissing the matter, given the thorough consideration of whether he would exercise his discretion to grant the relief sought. Importantly, the Commissioner considered what was before him and the particular way in which the case was presented including the capacity of Mr Alchin to make a further application to the Commission to deal with the underlying controversy of his threatened dismissal in unfair dismissal proceedings.
The Association argued that it has rights and interests separate from Mr Alchin and that the matters to be considered in any unfair dismissal proceedings may not overlap exactly with the matters considered in the original proceedings. It is abundantly clear that the original proceedings were solely about Mr Alchin's threatened dismissal for which a remedy was available, with or without the Association's assistance, through the unfair dismissal proceedings. He subsequently commenced such proceedings which were then discontinued. If there is a broader dispute between the Association and the Police Commissioner about the policies and procedures relating to the treatment of injured workers, there is no prejudice to the Association's capacity to pursue those concerns through this Commission.
Given our reasons for rejecting grounds one, two and three of the appeal, ground four must also fail.
For these reasons, we have decided to grant leave to appeal, but to dismiss the appeal.

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