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

The Decision

1. The Decision arose from a notification of an industrial dispute pursuant to s 130 by the Association on 15 November 2021 (Notification). The Notification described a dispute between the Association and the Police Commissioner resulting from a decision to medically retire Mr Alchin, effective 11 November 2021 (Police Commissioner's decision). The Association asserted that the Police Commissioner's decision was contrary to s 94B of the Police Act 1990 (NSW) (Police Act), s 49 of the Workplace Injury Management and Worker's Compensation Act 1998 (NSW) (WIM Act), and the respondent's Standard Operating Procedures for Managing the Deployment of Injured Police Officers. It also asserted that the Police Commissioner's decision was procedurally and substantively harsh, unjust, and unreasonable.
2. In resolution of the dispute, the Association sought orders under ss 136(1)(c) and (d) and 137(1)(c) of the Act that the respondent retract its threat to medically retire Mr Alchin, implement a recovery at work plan, and comply with processes contained within the Standard Operating Procedures for Managing the Deployment of Injured Police Officers by allowing Mr Alchin to continue to work in the role he performed prior to the Police Commissioner's decision to medically retire him: [26] of the Decision.
3. The Decision documents the factual background to the dispute at [4]-[25]. Commissioner Sloan then summarised the relief sought by the Association, and the jurisdictional basis upon which it contended such relief could be granted: Decision at [26]-[29].
4. Commissioner Sloan devoted considerable attention in the Decision to the issue of the "Characterisation of the dispute". The Commissioner referred to the decision of Unions NSW v Carter Holt Harvey Wood Products Australian Pty Ltd (2006) 149 IR 361; [2006] NSWIRComm 2 (Carter Holt Harvey). The Commissioner's application of the principles articulated in Carter Holt Harvey in dismissing the original proceedings is a central issue in the appeal. At [32] of the Decision, Commissioner Sloan set out the following from Carter Holt Harvey: "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." (emphasis as it appeared in the Decision)
5. Commissioner Sloan then summarised the parties' contentions with respect to the characterisation of the dispute. He foreshadowed that he did not agree with the Association's submission that the proceedings formed part of a broader dispute, extending beyond the circumstances of Mr Alchin: [33]-[38].
6. After extracting the description of the dispute contained at "Schedule A" of the Notification, Commissioner Sloan stated at [41]: "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 [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 [Act]."
7. The Commissioner then analysed the Association's evidence in the context of its submission that the dispute was broader than the immediate circumstances of Mr Alchin. Commissioner Sloan concluded that there was insufficient evidence to support the Association's contention that it holds an "ongoing concern about the treatment of police officers in medical retirement circumstances". In doing so, the Commissioner characterised the concerns raised by the Association as being in the context of Mr Alchin's circumstances only. The Commissioner also referred to the outcome sought by the Association in the proceedings as only having application to Mr Alchin: [42]-[63]. He observed at [49]: "The Association made no request or proposal that might be directed towards addressing any systemic or collective issues that it may have had."
8. At [64]-[67] of the Decision, Commissioner Sloan stated: "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."
9. Commissioner Sloan acknowledged that the Commission had exercised its discretion in a manner consistent with the relief sought by the Association in an analogous case, namely Police Association of New South Wales v Commissioner of Police [2023] NSWIRComm 1001. However, he observed that, whether the Commission orders such relief is a matter of discretion, and that there was nothing on the face of the decision in the aforementioned case that suggested that the Police Commissioner had urged the Commission not to exercise its discretion on the basis pressed by the Police Commissioner in the proceedings before him: [71].
10. At [72] of the Decision, Commissioner Sloan returned to Carter Holt Harvey stating: "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 Commissioner then considered the statutory scheme of the Act. He expressed some reservations as to the availability of s 137(1)(c) to make the orders sought by the Association, in circumstances where Mr Alchin had not been threatened with dismissal "in the course of the industrial dispute", but rather where it was the threat of dismissal which gave rise to the dispute, but acknowledged the issue was not canvassed by the parties: [84]-[89].
12. The Commissioner then considered the Association's reliance upon s 136(1)(d) and its contention that the orders sought are authorised by ss 89(7) and 89(8) of the Act. He concluded that the power to make orders pursuant to s 89 is available if the Commission finds the dismissal was harsh, unreasonable, or unjust. The Commissioner found that the principles relevant to an evaluation of those matters were not traversed by the Association's written submissions, were only briefly referred to in oral submissions, as he had set out at [81] -[82] of the Decision, and it was not for the Commission to "construct a case that might be put as to why the dismissal of Mr Alchin would be harsh, unreasonable or unjust.". The Commissioner found that the Association's case was instead based on broad notions of "fairness". On this point, the Commissioner concluded that the Association's contention would provide for an outcome whereby s 130 would be a vehicle by which a notifier could find relief provided for in s 89 of the Act based on "amorphous notion of 'fairness'", without the notifier having to establish that a dismissal or threatened dismissal was or would be harsh, unreasonable, or unjust. The Commissioner concluded, "I do not consider that Ch 3 Pts 1 and 2 of the Industrial Relations Act ought to be approached on that basis": [90]-[95].
13. The Commissioner considered relevant to the exercise of his discretion the availability of recourse to Mr Alchin by commencing proceedings pursuant to Ch 2 Pt 6 of the Act and Pt 8 of the Workers Compensation Act 1998 (NSW): [96]. He also considered the impact of requiring the parties to commence new proceedings, duplicating matters traversed in the original proceeding: [97]. However, the Commissioner concluded that to grant the relief sought would run contrary to the broader legislative framework. The Decision contained the following observations at [99]-[104]: "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…. 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… 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. … 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."
14. The Commissioner determined, at [105], "in light of the observations of the Full Bench in Carter Holt Harvey and having regard to the broader legislative scheme", it was not appropriate for the Commission to exercise its discretion to provide relief pursuant to its powers under ss 136 and 137 of the Act, and he dismissed the proceedings.
15. After the Decision was published, Mr Alchin commenced unfair dismissal proceedings in the Commission. On 11 August 2023, Mr Alchin's unfair dismissal proceedings were discontinued with the consent of the respondent.

Relevant legislation

1. It is convenient to set out the legislation relevant to the appeal. Chapter 3 of the Act is entitled, "Industrial Disputes". Part 1 and 2 of Ch 3 provides as follows: Part 1 - Conciliation and arbitration of industrial disputes 130 Notification of industrial dispute to Commission (1) Any of the following may notify the Commission of an industrial dispute for the purpose of resolving the dispute - (a) an industrial organisation of employees or employers, (b) an employer who is or is likely to be affected by the dispute, (c) a person who is or is likely to be the subject of a secondary boycott in connection with the dispute, (d) a State peak council. … 131 Mandatory dispute resolution procedures to be followed first The Commission may refuse to deal with an industrial dispute until it is satisfied that any relevant dispute resolution procedures in an industrial instrument have been followed as far as is reasonably practicable in the circumstances. 132 Compulsory conference (1) For the purpose of resolving an industrial dispute, the Commission may convene a compulsory conference and require the attendance of any person whose presence the Commission considers would help in the resolution of the dispute. (2) A compulsory conference is to be presided over by a member of the Commission. (3) The Commission may confer with any person on any matter that may affect the resolution of an industrial dispute, without requiring the person to attend a compulsory conference. 133 Conciliation before arbitration The Commission must first attempt to resolve an industrial dispute by conciliation. … 136 Arbitration of dispute (1) The Commission may, in arbitration proceedings, do any one or more of the following - (a) make a recommendation or give a direction to the parties to the industrial dispute, (b) make or vary an award under Part 1 of Chapter 2, (c) make a dispute order under Part 2, (d) make any other kind of order it is authorised to make (including an order made on an interim basis). (2) Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute. Part 2 Dispute orders 137 Kinds of dispute orders (1) The Commission may make the following kinds of dispute orders when dealing with an industrial dispute in arbitration proceedings - (a) The Commission may order a person to cease or refrain from taking industrial action. (b) The Commission may order an employer to reinstate or re-employ any one or more employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute. (c) The Commission may order an employer not to dismiss employees in the course of the industrial dispute if the employer has threatened to do so. (d) The Commission may order a person to cease a secondary boycott imposed in connection with the industrial dispute. (2) If employees are taking industrial action in connection with the industrial dispute, the Commission may order the employees to cease taking that industrial action before it makes any other kind of dispute order against the employer. (3) A dispute order may not provide for the payment of compensation, lost remuneration or any other amount. Note - See also claim for remedy under Part 6 of Chapter 2 (Unfair dismissals). 138 Making of dispute orders (1) A dispute order may be made only against - (a) a party or likely party to the industrial dispute, or (b) a member, officer or employee of an industrial organisation that is such a party or likely party, or (c) a person engaged, or likely to be engaged, in a secondary boycott in connection with the industrial dispute. (2) A dispute order - (a) must clearly identify the persons against whom the order is made and who are bound by the order, and (b) must state a time within which the order is to be complied with or state a period during which it remains in force, and (c) may be varied or revoked by the Commission at any time. (3) If an employee is reinstated or re-employed under this Part, the Commission may order that the period of employment of the employee with the employer is taken not to have been broken by the dismissal.
2. Part 6 of Ch 2, titled "Unfair Dismissals" is also relevant, in particular ss 84 and 89 which provide: 84 Application for remedy by dismissed employee (1) If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part. (2) An application may be made on behalf of the employee by an industrial organisation of employees. (3) An industrial organisation may make one application on behalf of a number of employees who were dismissed at the same time or for related reasons. However, this subsection does not prevent the Commission from hearing a number of applications under this Part together or individually. (4) An application may be made under this Part even though the applicant does not specify the nature of the remedy sought or requests compensation only. However, this subsection does not affect the requirement under this Part that compensation is available only if the Commission considers that reinstatement or re-employment would be impracticable. … 89 Orders for reinstatement, re-employment, remuneration, compensation (1) Reinstatement The Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed. (2) Re-employment If the Commission considers that it would be impracticable to reinstate the applicant, the Commission may order the employer to re-employ the applicant in another position that the employer has available and that, in the Commission's opinion, is suitable. (3) Remuneration If the Commission orders reinstatement or re-employment, it may order the employer to pay to the applicant an amount stated in the order that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated or re-employed in accordance with the order. (4) Continuity If the Commission orders reinstatement or re-employment, it may order that the period of employment of the applicant with the employer is taken not to have been broken by the dismissal. (5) Compensation If the Commission considers that it would be impracticable to make an order for reinstatement or re-employment, the Commission may order the employer to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed. If the applicant was on leave without full pay during any part of that period, the maximum amount of compensation is to be determined as if the applicant had received full pay while on leave. (6) When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration received in alternative employment, or that would have been payable if the applicant had succeeded in obtaining alternative employment. (7) Threat of dismissal In determining a claim relating to a threat of dismissal, the Commission may order the employer not to dismiss the employee in accordance with that threat. (8) An order under this section may be made on such terms and conditions as the Commission determines.
3. Section 83(5) provides that "dismissal" in Pt 6 includes "the threat of dismissal".

The conduct of the appeal proceedings

1. The Association filed an Application for Leave to Appeal and Appeal, pursuant to s 187 of the Act, on 3 February 2023.
2. The Association filed an outline of submission on Leave to Appeal on 5 May 2023. On the same day the Association filed an outline of submission on the Appeal (AS).
3. The Police Commissioner filed an outline of submissions on Leave to Appeal on 19 May 2023. On the same day the Police Commissioner filed an outline of submissions on the Appeal.
4. The Association filed an outline of submissions in reply on 2 June 2023.
5. The matter was listed for hearing before the Full Bench of the Commission on 9 June and 16 July 2023.
6. On 16 June 2023, the Association filed an Amended Application for Leave to Appeal and Appeal, with leave granted by the Full Bench.
7. On 25 July 2023, the parties separately filed notes on the utility of granting leave to appeal.

The appeal

1. The Association's Amended Application for Leave to Appeal and Appeal included the following: "REASONS WHY LEAVE TO APPEAL SHOULD BE GRANTED 1 The decision arose from an arbitration in a dispute that raised question (sic) about the medical retirement of a police officer. The appellant alleged: a. The prerequisites of s94B of the Police Act 1990 to permit medical retirement were not met. b. The Police Commissioner did not comply with the obligation to provide suitable duties under s49 of the Workplace Injury Management and Workers Compensation Act 1998. c. The benefits in the NSW Police Force's policies and procedures concerning injured officers were not observed. d. A settlement agreement dealing with the procedure to be followed in circumstances of proposed medical retirement of police officers reached in this Commission was not followed. 2 The questions raised in the dispute are significant and have broad application. 3 The Commissioner refused to deal with the questions raised in the dispute. 4 The Commission's refusal to deal with these questions left the substantial questions raised unresolved. 5 The refusal to deal with these questions visited an unfairness on the police officer who has now been dismissed and must bring his own proceedings to resolve his dismissal. 6 There is a lack of comity in the approach taken by the Commission in similar matters. There have been a number of disputes raised by the appellant before the Commission dealing with similar questions in which the Commission has assisted the parties or granted relief following arbitration. The decision in this matter departs from that approach. 7 The failure to resolve the dispute sets a precedent which has ramifications for the procedures followed in the Commission when a dispute over a termination of employment is raised. QUESTIONS OF LAW 1 Whether Part 1 of Chapter 3 of the Industrial Relations Act 1996 requires a dispute notified under s130 to have a sufficient collective element before relief will be granted in an arbitration under s136. 2 Whether the Commissioner's refusal to deal with the dispute amounted to jurisdictional error. APPEAL GROUNDS 1 The Commissioner erred by applying a wrong principle that it is not appropriate to make orders under Chapter 3 of Part 1 of the Industrial Relations Act 1996 to prevent the dismissal of an employee unless an industrial dispute contains a collective element. 2 In the alternative, the Commissioner erred by finding that the nature of the dispute did not establish a sufficient collective element. In doing so the Commissioner took into account irrelevant considerations and failed to take into account, or give sufficient weight to, relevant considerations. 3 The Commissioner erred by failing to consider the merits of the dispute arising from the proposed termination. 4 The errors, separately or together, amount to jurisdictional error. 5 Such further grounds as the Commission deems fit. ORDERS SOUGHT 1 That leave to appeal be granted. 2 Appeal allowed. 3 That the initial decision of the Commission be set aside in its entirety. 4 That the matter be remitted to a member of the Commission to be determined in accordance with law."

Leave to appeal and appeal

1. 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.
2. 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."
3. 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).
4. 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].
5. 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.
6. 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].
7. 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.
8. 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].
9. 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.
10. 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.
11. 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.
12. 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).
13. 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.
14. 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.
15. 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.
16. 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."
17. 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.
18. 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.
19. 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.
20. 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.
21. 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.
22. 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).
23. 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.
24. 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.
25. 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.
26. 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."
27. We do not see error in the Commissioner's approach and application of the principle in Carter Holt Harvey.
28. 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].
29. 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).
30. 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."
31. For the above reasons we reject the Association's first ground of appeal.
32. 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.
33. 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.
34. 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.
35. Given our reasons for rejecting grounds one, two and three of the appeal, ground four must also fail.
36. For these reasons, we have decided to grant leave to appeal, but to dismiss the appeal.

Order

1. We made the following orders: 1. Leave to appeal is granted. 2. The Appeal is dismissed.

Amendments 20 September 2023 - Inclusion of Hearing dates on Cover Sheet. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 September 2023