Police Association v NSW Police

Industrial Relations Commission (NSW)|2005-01-03|Before: Boland J, Mr P

CITATION: Police Association v NSW Police (No 2) [2005] NSWIRComm 70

NOTIFIER Police Association of New South Wales PARTIES: RESPONDENT New South Wales Police

CATCHWORDS: Industrial Dispute - Notification of dispute under section 130 of Industrial Relations Act - Former police officer seeking reinstatement or re-employment - Jurisdiction - Whether Part 6 of Chapter 2 of the Industrial Relations Act 1996 constitutes an exclusive code ousting the provisions of Parts 1 and 2 of Chapter 3 of the Act in circumstances whether the claim is for reinstatement or re-employment of former employee - Constructive dismissal - Refusal to employ - Industrial dispute - Industrial matter - Held jurisdiction to hear and determine industrial dispute

Industrial Arbitration Act 1940 Industrial Relations Act 1991 LEGISLATION CITED: Industrial Relations Act 1996 Interpretation Act 1987 Police Service Act 1990

Allison v Bega Valley Council (1995) 63 IR 68 Bronwyn Johnston v Department of Mineral Resources (1997) 73 IR 267 Claric 218 Pty Ltd t/as Sanity Music v Meldrum (1998) 91 IR 296 Derrick v Dangar [1921] 20 AR (NSW) 40 Downey v Trans Waste Pty Ltd (1991) 172 CLR 167, 37 IR 301 Federated Municipal and Shire Council Employees' Union Of Australia, New South Wales Division v Energy Australia (1999) 90 IR 311 Newcastle City Council v GIO General Limited (1997) 191 CLR 85 CASES CITED: Orange City Bowling Club v Federated Liquor and Allied Industries Employees' Union of Australia, New South Wales Branch [1979] AR (NSW) 90 Pacific Waste Management Pty Ltd v Saley (1993) 51 IR 339 Police Association v NSW Police [2004] NSWIRComm 256 Police Service of New South Wales v Batton (2000) 98 IR 154 R v Wallis, Ex parte (Employers Association of Wool Selling Brokers & Others (1949) 78 CLR 529 Terrigal Memorial Country Club Limited v Federated Liquor and Allied Industries Employees' Union of Australia, New South Wales Branch (1992) 46 IR 145 Woolstar Pty Limited v Federated Storemen and Packers Union of Australia (New South Wales Branch) (1992) 45 IR 39

NOTIFIER Mr B Docking of counsel Solicitor: Mr A Howell Jones Staff & Co LEGAL REPRESENTATIVES:

RESPONDENT Mr P Skinner of counsel Solicitor: Ms M Buchanan New South Wales Police

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

RE NOTIFICATION UNDER S 130 OF THE INDUSTRIAL RELATIONS ACT 1996 BY THE POLICE ASSOCIATION OF NEW SOUTH WALES OF A DISPUTE WITH NEW SOUTH WALES POLICE RE REFUSAL TO REINSTATE WAYNE WALPOLE

1 In Police Association v NSW Police [2004] NSWIRComm 256 the Commission found that an industrial dispute existed between the Police Association of New South Wales and the Commissioner of Police in relation to the Commissioner's refusal to reinstate or re-employ Mr Wayne Walpole, formerly a Detective Sergeant, whose employment with the NSW Police ended on 24 June 1997. The Commission further held that there was no jurisdictional bar to it conciliating in respect of the dispute and making a recommendation or giving a direction pursuant to s 134(2) of the Industrial Relations Act 1996 ("1996 Act"). 2 The Commission reserved its position in respect of whether it had the power to order reinstatement or re-employment of Mr Walpole. At [9]-[11] the Commission observed: 9 Mr Skinner submitted, however, as I understood him, that the specific provisions of ch 2 Pt 6 of the Industrial Relations Act dealing with unfair dismissals, excluded the operation of the general provisions of the Act that might be said to enable the Commission to provide relief in respect of unfair dismissals, including the general provisions in ch 3 Pt 1 dealing with industrial disputes. This proposition raises somewhat complicated questions of statutory interpretation reminiscent of those matters considered in Woolstar Pty Limited v Federated Storemen and Packers Union of Australia (New South Wales Branch) (1992) 45 IR 39.

10 It may or may not be that Mr Skinner is correct to the extent that an application for relief in relation to the dismissal of an individual employee must be brought under the provisions of ch 2 Pt 6 of the Act and that in arbitration proceedings relief in relation to dismissal under ch 3 Pt 1 is only available in the terms provided for by s 137(b) and (c). I do note, however, that s 136(1)(d) of the Act enables the Commission in arbitration proceedings to "make any other kind of order it is authorised to make (including an order made on an interim basis)", which may include an order under ch 2 Pt 6.

11 In other words, it may be arguable that the Commission's power to order the reinstatement of an employee who claims he or she was unfairly dismissed is limited to those powers available under ch 2 Pt 6 of the Act (subject to the provisions of s 137(b) and (c) and possibly s 136(1)(d)). However, if I were to determine this aspect of the respondent's jurisdictional objections I would require much more detailed submissions from both parties than I have hitherto received. 3 Conciliation failed to resolve the dispute and the respondent indicated it wished to press its jurisdictional objection that in the circumstances of this matter the Commission did not have the power to order reinstatement or re-employment. This decision is about whether the Commission has such power. This involves the question of whether the provisions of Ch 2, Pt 6 of the 1996 Act dealing with unfair dismissals, excluded the operation of those provisions of the Act in Parts 1 and 2 of Ch 3 dealing with industrial disputes in circumstances where the claim is for reinstatement or re-employment of a former employee. 4 It is important at the outset to understand that the applicant does not rely at all on the provisions of Ch 2, Pt 6 of the Act, which deal comprehensively with unfair dismissals and the remedies available to employees in the event they are unfairly dismissed. The reason why this is so has not been stated by the applicant but there may be a number of reasons, including the time limit imposed by s 85 of the Act on the making of applications. 5 It is also important to understand that the applicant has not confined the relief claimed to an order for reinstatement or re-employment. It has indicated that if it is successful in satisfying the Commission it has jurisdiction, it will be seeking either a recommendation under s 136(1)(a), an award under s 136(1)(b), a dispute order under s 136(1)(c) and s 137(1)(b) or any other kind of order the Commission is authorised to make under s 136(1)(d) depending on what relief the Commission considers appropriate after hearing the substantive merits of the case. 6 Mr P Skinner of counsel for the respondent contended that the Commission was bound to follow the decision of the Full Court of the Industrial Court in Woolstar Pty Limited v Federated Storemen and Packers Union of Australia (New South Wales Branch) (1992) 45 IR 39 and to find that it has no jurisdiction to entertain the applicant's claim in this matter. In Woolstar the Full Court held that Ch 3, Pt 8 of the Industrial Relations Act 1991 ("the 1991 Act") constituted a code regarding the relief available in relation to unfair dismissals. 7 The Full Court in Woolstar: compared the provisions of the Industrial Arbitration Act 1940 dealing with the Commission's power to provide relief where an employee had been dismissed and the relevant provisions of the 1991 Act; considered the relevant terms of the 1991 Act itself and the approaches to statutory construction where an Act contained both general and specific provisions dealing with the same subject matter; and, concluded that the particular provisions of the Act in Ch 3 Pt 8 (the unfair dismissal provisions) prevailed over the general provisions (e.g., s 8 - Power of Commission to make Awards on Conditions of Employment) as the exclusive source of jurisdiction in the 1991 Act. 8 At 50 the Full Court stated: The determination that Chapter 3, Part 8 constitutes a code regarding the relief available in relation to unfair dismissals still leaves the provisions in ss 194 and 210 to do the work relevant to their operation in relation to collective dismissals. Those sections relate to the issue of injunctive relief (in re industrial action where rights are settled by award or agreement (s 193) and orders in re industrial action concerning rights not settled by a current award or agreement (s 210)). Industrial action, under both these sections, must relate to an industrial matter which, of course, by the s 4 definition includes reinstatement. Under these provisions the Commission will remain free to deal with any surrounding industrial circumstance which may arise in relation to dismissals, although particular relief by way of reinstatement, re-employment or compensation will be available only under Chapter 3, Part 8, Unfair Dismissals. 9 The Full Court in Woolstar considered that the reasoning in R v Wallis; Ex parte (Employers Association of Wool Selling Brokers) (1949) 78 CLR 529 was appropriate to apply in the construction of the 1991 Act and quoted Dixon J at 549 as follows: The powers of a conciliation commissioner to make a binding award or order with respect to a question how far employment is to be available to persons who are not members of a particular organization are, as I think, conferred by s. 56 of the Commonwealth Conciliation and Arbitration Act 1904-1948 and do not go beyond the order or direction for preference which that section authorizes. That appears to me to be the true intention of the Act. The general power of a conciliation commissioner to make an order or award determining a dispute is to be found in s 38. The power is expressed in abstract terms without specifying or indicating what the determination may cover or what the award or order shall or may provide. Upon matters with reference to which the Act does not elsewhere specify or indicate what may or shall be done by an award or order, this general power is properly interpreted as enabling the arbitrator to make any provision he thinks fit that is relevant, appropriate or reasonably incidental to the settlement of the real dispute before him. But upon some matters the Act does speak with more particularity. If it confers a specific power with respect to a limited subject or specifies a manner of dealing with it or otherwise provides what the duty or authority of the arbitrator shall be, then upon ordinary principles of interpretation the provision in which that is done should be treated as the source of his authority over the matter, notwithstanding that otherwise the same or a wider power over the same matter might have been implied in or covered by the general authority given by s 38. This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.

This applies especially when the power or duty affirmatively conferred or imposed is qualified by some condition, limitation or direction. In North Stafford Steel, Iron and Coal Co. (Burslem), Ltd. v. Ward (1808) LR 3 Ex 172, at p 177, Willes J. refers to "the ordinary rule, that if authority is given expressly, though by affirmative words, upon a defined condition, the expression of that condition excludes the doing of the Act authorized under other circumstances than those defined." 10 The Full Court in Woolstar also referred to the High Court's judgment in Downey v Trans Waste Pty Ltd (1991) 172 CLR 167; 37 IR 301. At 48 the Full Court stated: In the latter case [ Downey ] the High Court examined the relevant provisions of the Industrial Relations Act 1979 (Vic) concerning jurisdiction in unfair dismissal matters. Section 34(1) of that Act provides the general jurisdiction of the Conciliation and Arbitration Board "to make an award relating to any industrial matter whatsoever and "to make an award determining all matters relating to … industrial disputes". However, s 34(5), (6) and (7) dealt specifically with unfair dismissals and the relief available in relation to any question in an industrial dispute as to unfair dismissal. The majority ( Dawson J giving separate reasons to the same result) said at 171; 302: The provisions of sub-ss. (5), (6) and (7) of s.34 manifest, in our view, a legislative intent that they should constitute an exhaustive definition of the primary jurisdiction under the Act to grant relief to an employee against his or her actual or threatened dismissal. It is, for example, plain that it would not have been the legislative intent that the express limitation (in sub-s (6)) on the amount of pecuniary compensation which can be awarded by way of such relief should be rendered nugatory by the existence of a general unlimited power in the Commission or a Board to grant relief in such a case. It is equally plain that it would not have been the legislative intent that the express requirement (in sub-s (7)) that an application for relief be brought by or on behalf of a dismissed employee "within 4 business days after the day on which his employment is terminated" could be avoided by resort to some general primary jurisdiction conferred by some other provision of the Act. In these circumstances, the operation of any general provision of the Act is repugnant to the special scheme established by sss (5), (6) and (7) to the extent to which that general provision would confer primary jurisdiction upon the Commission or upon a Board to grant relief to an employee against his or her actual or threatened dismissal on the ground that that dismissal was or would be harsh, unjust or unreasonable. To that extent, the operation of any such general provision is excluded by those sub-sections (see, e.g., Anthony Hordern and Sons Ltd. v. Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, at pp 7, 20-21; Leon Fink Holdings Pty. Ltd. v. Australian Film Commission (1979) 141 CLR 672, at p 678; Refrigerated Express Lines (A/asia) Pty. Ltd. v. Australian Meat and Live-stock Corporation (No.2) (1980) 44 FLR 455, at pp 468-469; 29 ALR 333, at p 347). The reasoning in those matters is apposite in this case. The structure of the Act and the nature of the limitations which are imposed by Chapter 3, Part 8, upon the exercise of power to reinstate and the general nature of the power assumed to be extended by s 8, are in substance indistinguishable from the facts which were before the Court in R v Wallis . 11 The Full Court in Woolstar also examined the 1991 Act in the context of its history and extrinsic material. At 49-50 the Full Court stated: We have already dealt with the effects of the 1991 Amendment Act which repealed s 20A of the 1940 Act and inserted the new par (cl) within the definition of "industrial matter", subs (4A) in s 25 and s 91 ZN in Division 3, Unfair Dimissal. The effect of these provisions was to cater for the interlock between collective and individual industrial disputes. We have already dealt with the way in which those provisions were in a sense reciprocal. Of course, s 91 ZN imposed a barrier on the exercise of jurisdiction by a Commissioner which otherwise would not have existed. In the absence of s 91 ZN a conciliation commissioner, dealing with a claim under Division 3, Unfair Dismissal, who became aware that a question, dispute or difficulty involving an industrial matter concerning persons other than the parties to the claim then before him, would have been entitled in pursuance of the general powers provided by s 25 of the 1940 Act to take such steps as were appropriate to deal with that different and wider issue. Section 91 ZN required the commissioner to follow a different course and prevented any dealing with the question, dispute or difficulty under Division 2 of Part 3 (the division in which s 25 appeared) unless so directed by the President. Section 91 ZN has no counter part in Chapter 3 of Part 8 of the IR Act but its absence does not simply remove that barrier because s 25 itself no longer appears in the Act. It is not just subs (4A) of s 25, the reciprocal provision, which is absent, but all of the generality of s 25. In terms of dispute resolution the Act deals with the matters to which ss 188 and 201 direct, namely a question, dispute or difficulty in respect of an award or agreement (s188) or a question, dispute or difficulty concerning an industrial matter not concerning settled rights (s 201). In our opinion this restructure or reform of the law is much more significant than the proposition that the retention of reference in the definition of industrial matter to reinstatement conveyed itself an intention to confer a general power separate from Chapter 3, Part 8. The removal of par (cl) in the definition of "industrial matter"; s 25(4A) and s 91 ZN of the 1940 Act convey to us that there was no longer intended to be the relationship between the specific provisions dealing with reinstatement and the general provisions of the Act. The absence of those provisions together with the then illogical conditions which would arise in this new context by having a freedom to exercise power untrammelled by the limitations imposed by Chapter 3, Part 8, cause us to conclude that it is the specific powers which Parliament intends to operate to the exclusion of any perceived general power.

12 I turn to consider the provisions of the 1996 Act. The relevant provisions in Parts 1 and 2 of Ch 3 of the 1996 Act are s 136 and s 137. These are the two sections that the applicant has indicated are available to the Commission in this matter in the exercise of its arbitration powers under the 1996 Act to resolve an industrial dispute. Section 136 is in Ch 3, Pt 1 - Conciliation and Arbitration of Disputes and is in the following terms: 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. Note. Examples of other kinds of orders the Commission may make are orders for secret ballots (section 172), a demarcation order under Part 6 of Chapter 5 and stand-down orders (section 126). 13 Section 137 is in Ch 3, Pt 2 - Dispute orders and is in the following terms: 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). 14 It is permissible in seeking to interpret the provisions of a statute to resort to extrinsic material to confirm the meaning of the provision is the ordinary meaning conveyed by the text of the provision or to determine the meaning of the provision (s 34 of the Interpretation Act 1987) or in order to ascertain the mischief that the statute was intended to cure: see Newcastle City Council v GIO General limited (1997) 191 CLR 85 per Toohey, Gaudron and Gummow JJ at 99. Extrinsic material includes a second reading speech: s 34(2)(f) of the Interpretation Act. In reading the Industrial Relations Bill 1995 for the second time the Hon J W Shaw QC MLC, Attorney General and Minister for Industrial Relations said in respect of the provisions of Ch 3 of the Bill and the powers available to the Commission to resolve industrial disputes: It may use any or all of the following devices: continue conciliation; make recommendations or directions; make or vary awards; make dispute orders; and make any other kind of order it is authorised to make, including orders on an interim basis. It dispenses with the artificial and academic constraints of the "interests/rights" dichotomy, and truly focuses on ensuring the resolution of disputes in a prompt and fair manner with the minimum of legal technicality. The legislation recognises that an essential part of the powers which should be available to the commission to resolve disputes is the ability to direct the actions of the parties. Under this bill, the commission may make the following kinds of dispute orders when dealing with an industrial dispute in arbitration proceedings: it may order a person to cease or refrain from taking industrial action; it may order a person to cease a secondary boycott imposed in connection with the industrial dispute; it may order an employer not to dismiss employees in the course of the industrial dispute if the employer has threatened to do so; and it may order an employer 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, thus re-investing the commission with its useful pre-1991 Act jurisdiction in this regard. Hansard, Legislative Council, 23 November 1995, 3851 15 Part 6 of Chapter 2 of the Act deals comprehensively with unfair dismissals. Part 6 provides, relevantly, that: (a) An individual employee may make application for a remedy (subject to exemptions and a remuneration cap) where the employee claims that his or her dismissal was harsh, unreasonable or unjust. A dismissal includes a threatened dismissal (ss 83, 84); (b) An application may be made on behalf of the employee by an industrial organisation of employees (s 84(2)); (c) 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, that does not prevent the Commission from hearing a number of applications under Part 6 together or individually (s 84(3)); (d) Applications must be made within a prescribed time subject to the Commission's discretion to accept an application that is made out of time (s 85); (e) The Commission must endeavour, by all means it considers proper and necessary, to settle the applicant's claim by conciliation (s 86); (f) Where conciliation is unsuccessful the Commission is to determine the claim by making an order under section 89, dismissing the application or making any other order it is authorised to make under this Act (s 87); (g) The Commission may consider certain prescribed matters in determining an applicant's claim (s 88); (h) The Commission may order reinstatement, re-employment or compensation up to a prescribed maximum. Compensation may only be ordered if the Commission considers that it would be impracticable to make an order for reinstatement or re-employment (s 89); (i) 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 (s 89(7)). 16 In his second reading speech, Mr Shaw stated in relation to the unfair dismissal provisions of the Bill: Chapter 2, Part 6 of the bill re-enacts the provisions of the 1991 Act relating to unfair dismissals. The view of most parties is that the New South Wales system concerning unfair dismissal works reasonably well and requires only minimal legislative change to address certain technical issues. Hansard, Legislative Council, 23 November 1995, 3849 17 It is apparent from Woolstar that under the 1991 Act that whilst the Commission was able to deal with "any surrounding circumstance which may arise in relation to dismissals" that occurred in the course of an industrial dispute, any particular relief by way of reinstatement, re-employment or compensation was only available under Ch 3, Pt 8 Unfair Dismissals of the 1991 Act. That situation changed with the passing into law of the 1996 Act, which gave express power to the Commission to make a dispute order pursuant to s 136(1)(c) and s 137(1)(b) to 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", or under s 136(1)(c) and s 137(1)(c) to order an employer "not to dismiss employees in the course of the industrial dispute if the employer has threatened to do so". Section 137(3), however, provides that a dispute order may not provide for the payment of compensation, lost remuneration or any other amount. 18 The contention for the respondent that Part 6 of Chapter 2 of the 1996 Act is an exclusive source of power in relation to the dismissal of an employee cannot be sustained in the light of the provisions of s 136 and s 137 of that Act. Those sections unambiguously provide power to the Commission to 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. In the present case, the applicant contends that Mr Walpole's dismissal resulted in the industrial dispute notified to the Commission pursuant to s 130 of the Act on 1 July 2004. Two issues arise out of this contention. First, was there a dismissal and, secondly, did it result in an industrial dispute? 19 It is the case that Mr Walpole resigned from his employment in June 1997. In my earlier judgment I observed at [7]: 7 It seems to me that Mr Walpole's complaint is that the Commissioner of Police had no proper grounds for issuing the s 181D notice but having been served with the notice Mr Walpole was advised that there was no basis to challenge the merits of any removal. Mr Walpole felt that he had no choice but to tender his resignation. In other words, he was forced out of his employment with the Police Service on the basis of allegations that had no foundation in fact and now he wants to be reinstated after years of his Association attempting to achieve that outcome by various means but to no avail. 20 As I understand the applicant's contention in relation to the application of s 136(1)(c) and s 137(1)(b), it is that Mr Walpole was constructively dismissed, having been left, in his mind, with no choice but to resign. As Mr Docking of counsel for the applicant submitted, constructive dismissal is a well known concept in this jurisdiction: · Allison v Bega Valley Council (1995) 63 IR 68 per Peterson and Marks JJ and Connor C at 72.

· Claric 218 Pty Ltd t/as Sanity Music v Meldrum (1998) 91 IR 296 per Hungerford and Schmidt JJ, Connor C at 299 - 301.

· Police Service of New South Wales v Batton (2000) 98 IR 154; Wright J President, Hungerford J and Connor C at [26], [27]. 21 The principle to be distilled from the leading case of Allison is whether the employer's actions or behaviour were such as to render its conduct as the real and effective initiator of the termination of employment. 22 Mr Docking relied on Pacific Waste Management Pty Ltd v Saley (1993) 51 IR 339 at 342 where the Full Commission stated: The meaning of the word 'dismissal' was recently considered by the Full Industrial Court in Smith v Director-General of School Education (1993) 51 IR 204. In their joint judgment, Fisher CJ, Bauer and Hungerford JJ held at 219: 'The Industrial Relations Act does not define 'dismissal', but, as we have said, s245(5)(a) includes in the concept the Crown's dispensing with the services of an employee. It is to the ordinary meaning of 'dismiss' that assistance may be obtained; The Oxford English Dictionary (2nd Ed 1989) defines the word in appropriate respects as follows: 2.a. To send away (a person); to give permission to go; to bid depart. b. ..... 3.a. To send away or remove from office, employment, or position; to discharge, discard, expel. b. ..... 4. To deprive or disappoint of or from some advantage. We apprehend no real issue may be taken with the ordinary meaning of the word 'dismissal' as so applied to s245, and, indeed, it seems to us that it is in that defined sense of an employee being sent away from employment that unfair dismissal cases in industrial jurisprudence have been concerned. The terms of s245 of the Industrial Relations Act would suggest no latent limitation in that respect. Therefore, we find no difficulty in accepting the ordinary meaning of 'dismissal' suggested by Brereton J in Ex parte Wurth as being 'the termination of services by the employer without the employee's consent'; we would add that where an employee does not freely consent to the termination, understood in a broad sense, then the circumstances may still amount to a dismissal by the employer as a constructive dismissal...' It is that meaning which the word 'dismissed' must in our view be given. 23 There is no reason, in my opinion, to consider that the word "dismissal" in s 137(1)(b) of the Act has a more limited meaning than that which has been ascribed to it by the authorities in other statutory contexts. I consider it includes the concept of constructive dismissal. 24 Mr Docking described what I had to say at [7] of my earlier judgment as an expression by me of a preliminary view as to the nature of the dismissal. All I was attempting to do, however, in that paragraph was relate what I understood to be the applicant's contentions. Before I am able to reach any concluded view on whether Mr Walpole's resignation was a constructive dismissal I will need to hear all of the evidence in that regard. 25 The second issue arising under s 136 and s 137 is whether Mr Walpole's dismissal (if that be the case) resulted in an industrial dispute. In my earlier judgment I stated at [8]: 8 In my opinion, the subject matter of the dispute notification relates to an industrial matter that clearly involves a " question or difficulty" and constitutes a dispute; the Police Association disputes the refusal of the Commissioner of Police to reinstate or re-employ Mr Walpole. 26 Nothing put to me in relation to the jurisdictional issue causes me to take a different view. Mr Docking has in fact reinforced that view by his reference to the Full Bench decision in Federated Municipal and Shire Council Employees' Union Of Australia, New South Wales Division v Energy Australia (1999) 90 IR 311 (Wright J, President, Peterson J and McKenna C) where it was said at 313: When arbitrating an industrial dispute the Commission may either make an award or a dispute order. The powers of the Commission to make an award are outlined in Part 1 of Chapter 2 of the Act (ss 10-20). The Commission is empowered to make an award setting fair and reasonable conditions of employment for employees (s 10). One of the circumstances in which an award may be made is in the course of the arbitration of an industrial dispute. The capacity of the Commission to make specific dispute orders is governed by Part 2 of Chapter 3 of the Act (ss 137-139) and the various kinds of dispute orders which may be made are set out in s 137. The underlying basis of the Commission's jurisdiction to make an award or order in arbitration proceedings under s 136 is the existence of an "industrial dispute" as defined by the Act. 27 At 322-323 the Full Bench stated: One area in which divergences may appear between the approach in the federal and NSW jurisdictions concerns the question of the so-called collective element required for the formation of an industrial dispute. In Monk v Dow Corning Australia Pty Ltd [1984] AR (NSW) 291 at 305-306, the Industrial Commission in Court Session determined that an application for reinstatement by an individual claimant pursuant to s 20A of the Industrial Arbitration Act 1940 involved an "industrial matter" notwithstanding any lack of industrial disputation (see also Roberts v Mona Vale District Hospital [1975] 2 NSWLR 132 at 142). This reasoning was specifically approved by the Full Bench of the Commission in Davis v Amalgamated Television Services (1998) 81 IR 364. In that case, the Full Bench considered whether proceedings under s 106 of the Act in respect of an allegedly unfair contract constituted an "industrial matter" for the purposes of s 6 of the Act. The Full Bench commented (at 385): 'The performance of work in an industry by Mr Davis and the conditions under which it is to be done, which are matters in issue in the appellant's s 106 proceedings, are, in our view, industrial matters within the meaning of the Act. We reject the argument that it is necessary that there should be a collective or group element involved for a matter to be an industrial matter within the meaning of the Act. Pursuant to the Interpretation Act 1987 (NSW), the plural, unless the contrary intention appears, includes the singular. In our view, there is no contrary intention manifested and, indeed, the opposite is the case. The Act operates in relation to the employment of an individual in an industry and the conditions of that person's employment. We regard the issue as largely settled by the decision of the former Industrial Commission ( Fisher P, Cahill and Watson JJ) in Monk . The Commission in Court Session there decided that a claim for the reinstatement in employment of an individual person involves an industrial matter notwithstanding the absence of any collective or group element. The decision in that case turned, in part, upon the provisions of the then s 20A of the 1940 Act. However, the provisions of the 1991 Act, under which an individual was entitled to institute a reinstatement action in his/her own right and in addition to notify industrial questions and/or disputes about industrial matters concerning his/her employment, confirmed and extended the position that it was not necessary for there to be a collective element or industrial dispute about a matter for it to be an industrial matter within the meaning of that Act. In our opinion, a similar position obtains in relation to industrial matters generally under the 1996 Act, having regard to the numerous provisions which confer, in addition to the matter of reinstatement in employment, other quite specific rights and benefits on individual employees, as for example, in relation to matters such as parental, maternity and paternity leave. This is not to say, as was seemingly espoused at times by Mr Rothman in his submissions, that the claims or proceedings under s 106 are themselves an industrial matter. Section 210(g) only requires that the proceedings be ones "relating" to an industrial matter. The decision in Staples is distinguishable; it concerned a federal Act which is not relevantly in pari materia and contains numerous provisions which are in different terms to those in the 1991 and 1996 Acts. It is now too late to attempt to turn the clock back in New South Wales. The industrial matter here, in terms of the definition contained in s 6 of the Act, is therefore the matter of the work to be done by Mr Davis for the respondent and their respective privileges, rights, duties and/or obligations in relation thereto.' Accordingly, the allegation that a dispute lacks a collective element does not of itself remove the subject-matter of the dispute from the jurisdiction of the Commission. The number of employees involved and the ramifications of a dispute for other employees and employers in the relevant industry may be matters bearing upon the merits of an application for an award. They are not, however, jurisdictional impediments to the Commission hearing the matter. The alleged lack of a collective element to an industrial dispute does not lead to the conclusion that no award or order can be made in the circumstances of this case. In any event, the judgment of the Court of Appeal in Roberts v Mona Vale District Hospital (at 142) makes clear that the active role of the relevant union in the dispute proceedings provides the necessary "collective element" in this jurisdiction. 28 Subject to a determination in the substantive proceedings, which are scheduled in May 2005, as to whether Mr Walpole's resignation amounted to a dismissal, I consider there is jurisdiction to order Mr Walpole's reinstatement or re-employment pursuant to the combined effect of s 136(1)(c) and s 137(1)(b) of the 1996 Act. Of course, the applicant must first make out a case on the merits before the Commission would make such orders. 29 In the event that the applicant is unable to show constructive dismissal it relies, inter alia, on the Commission's powers to make an award pursuant to s 136(1)(b) or an order under s 136(1)(d) of the 1996 Act. I do not decide whether power exists under s 136(1)(b) to make an award to require the respondent to reinstate or re-employ Mr Walpole because of the view I have taken in relation to s 136(1)(d). However, on one view, on the authorities of Wallis and Downey, the Commission would not have the power to make such an award. The consequences of assuming power to do so may be to enable Pt 6 of Ch 2 of the Act to be effectively bypassed and that does not seem to me to be consistent with the legislature's intention. Alternatively, the Commission does have power to make an award but that power must be read as being confined by the provisions of s 90 of the 1996 Act, in the same way as the power is confined when an application for reinstatement is brought directly under s 84: see Bronwyn Johnston v Department of Mineral Resources (1997) 73 IR 267 at 274. As Schmidt J observed in that case, "The limitations imposed by s 90 upon the Commission's power to make reinstatement orders cannot be avoided by reinstatement being pursued by way of dispute notification, rather than by way of a direct reinstatement application." 30 Section 136(1)(d), on the other hand, provides that: The Commission may, in arbitration proceedings, do any one or more of the following: (a) … (b) … (c) … (d) make any other kind of order it is authorised to make (including an order made on an interim basis). 31 In my opinion, the power to "make any other kind of order it is authorised to make" would include orders under s 89 of the Act, that is reinstatement, re-employment or compensation. 32 In Johnston, Schmidt J considered a jurisdictional issue that was raised by the respondent in relation to two matters - the dispute originally notified by the Public Service Association of New South Wales ("PSA") under s 204 of the 1991 Act and the application for reinstatement brought by Ms Johnston under s 84 of 1996 Act. These circumstances raised for consideration the operation and potential interaction between s 90 and s 169 of the 1996 Act and their application to the orders that Ms Johnston and the PSA sought to pursue in those proceedings. At 272 Schmidt J observed: Turning then to proceedings where dismissal is an issue, the starting point is again the general structure of the Act. The Act is structured quite differently to the 1991 Act in a number of ways. One of these differences lies in the powers granted to the Commission to deal with dismissal. While the dismissal provisions of the 1991 Act, Part 8 of Chapter 3 were designed as a code, (see Woolstar Pty Limited -v- Federated Storemen and Packers Union of Australia (New South Wales Branch) (1992) 45 IR 39), the Act has departed from that approach. Applications for reinstatement may be brought under s 84. Section 89 prescribes the orders which the Commission may make in an arbitration in respect of such a reinstatement application. Industrial disputes which involve dismissal issues may also be notified to the Commission under s 130 of the Act. In the event that such a dispute is not settled in conciliation, the Commission's reinstatement powers (s 89), are available to the Commission to be exercised in an arbitration under ss 136(1)(c) of the Act. Unlike the 1991 Act, this power is no longer confined to reinstatement applications brought under s 84. (See also rule 26 of the Industrial Relations Commission Rules 1996 [r 26 provides: "Where a notification indicates that an order for reinstatement (or similar) will be sought, particulars of the claim shall be served promptly after notification of the dispute, unless an application under the relevant section is filed"].) 33 After referring to the provisions of s 254 of the 1991 Act her Honour continued at 274: The construction of s 254 was considered by a Full Bench of the former Commission ( Fisher P, Peterson J and McKenna CC), in PSA (NSW) -v- NSW Crime Commission (1993) 48 IR 363. The case did not concern a situation where proceedings had actually been commenced elsewhere, but rather the time at which a written undertaking not to pursue other remedies had to be given. At pp 366-367 the Full Bench spoke of the purpose of the section in these terms: `A person in New South Wales who claims relief with respect to termination of employment may have a range of alternative rights or remedies arising under various Acts or statutory instruments. Depending upon the employment status of the person concerned and/or the reason for the termination, these rights or remedies may include overlapping remedies pursuant to statutes including: Anti-Discrimination Act 1977 (NSW); - Employment Protection Act 1982 (NSW); - GREAT Act 1980 (NSW); Human Rights and Equal Opportunity Act 1986 ( Cth); - Industrial and Commercial Training Act 1989 (NSW); - Industrial Relations Act 1988 (Cth); - Industrial Relations Act 1991 (NSW); - Local Government Act 1919 (NSW); - Occupational Health and Safety Act 1983 (NSW); - Police Service Act 1990 (NSW); - Racial Discrimination Act 1975 (Cth); - Sex Discrimination Act 1984 (Cth); - Workers' Compensation Act 1987 (NSW). When the terms of s 254 of the 1991 Act and the potential array of alternative remedies that might be available in relation to termination of employment are examined, there is no doubting the purpose of the written undertaking. The requirement arises only in the context of two or more alternative rights of remedy, and the waiver is designed to prevent a duality of approach to different tribunals for relief in relation to the same complaint in so far as the remedy involves an application concerning a dismissal (or threat of dismissal) which is harsh, unreasonable or unjust.' The question there being considered by the Full Commission was the time at which an undertaking not to pursue other remedies available under other legislation had to be lodged under s 254. In the proceedings there had been no undertaking lodged with the reinstatement application. The undertaking was however lodged after conciliation, but prior to hearing of the application commenced. It was concluded that properly read, s 254 did not jurisdictionally require the contemporaneous lodging of a written undertaking and an unfair dismissal application. It is apparent that this approach to s 254 has been reinforced in s90 of the Act, with the emphasis now placed in the introductory words on the determination of a matter. It follows that the time at which the application of s 90 must be considered, is immediately before the Commission commences its determination of the proceedings in an arbitration under s 87.

If a dismissal is pursued in a dispute notification lodged under s130 of the Act, rather than in an application under s 84, the same result follows. In an arbitration in relation to the dispute, the Commission is empowered by ss 136(1)(d) to order reinstatement, that being an order which the Commission is authorised to make under s 89. In my view that power must however be read as being confined by the provisions of s 90, in the same way as the power is confined when an application for reinstatement is brought directly under s 84. The limitations imposed by s 90 upon the Commission's power to make reinstatement orders cannot be avoided by reinstatement being pursued by way of dispute notification, rather than by way of a direct reinstatement application. This conclusion is not affected by the fact that dismissed employees are not themselves direct parties to dispute proceedings concerning their dismissal. Dismissed employees may not notify disputes under s 130, such notifications being confined to industrial organisations, employers, persons the subject of secondary boycotts or State Peak Councils. The applicant' referred to in the opening words of s 90, The Commission must not determine an applicant's claim' , need not be the dismissed person. Section 84 itself permits an industrial organisation to make a reinstatement application. `The person' referred to in ss 90(a) and (b) however is the dismissed person, in this case Ms Johnston, who is the subject of the orders pursued by the PSA in the dispute proceedings. 34 I have been provided with no convincing reason why I should not follow her Honour in Johnston except that, on the authority of Woolstar, Ch 2, Pt 6 of the 1996 Act is the exclusive source of power in dealing with dismissal. I have concluded that exclusivity does not now exist, at least in relation to orders under s 136(1)(c) and s 137(1)(b). It then becomes a question in relation to s 136(1)(d) whether its operation is limited by the provisions of Ch 2, Pt 6. For the reasons given by Schmidt J I do not consider it is so limited. Moreover, if the legislature had wished to prevent the Commission making orders in relation to dismissals in arbitrating the settlement of a dispute it would have been a simple matter of excluding orders that can be made under Ch 2, Pt 6. Section 137, for instance, provides that "A dispute order may not provide for the payment of compensation, lost remuneration or any other amount". Instead, s 136(1)(d) enables the Commission in arbitration proceedings to "make any other kind of order it is authorised to make". 35 Even if Schmidt J was not correct in relying on s 90, and I cannot see why that would be so, it is clear from the terms of s 136(1)(d) that in making an order under that section the Commission may only make an order that it is authorised to make. Thus, if the Commission decided, pursuant to s 136(1)(d), to order compensation in relation to an unfair dismissal it would not be authorised to make an order providing for an amount that exceeded the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed: see s 89(5). 36 I would make the further observation that if the Commission is empowered to make dispute orders under s 136(1)(c) and 137(1)(b) to reinstate or re-employ an employee, there does not seem to be any reason based on the principles of statutory construction or policy considerations why it would not also be empowered to make an order for reinstatement or re-employment under s 136(1)(d). 37 Of course, any arbitration under s 136 must be in relation to an industrial dispute and, therefore, must be about an industrial matter. If there is no dismissal because the respondent was not the real and effective initiator of the termination of employment, the applicant cannot rely on the contention that Mr Walpole was dismissed from his employment. However, the definition of industrial matter in the 1996 Act includes the following in s 6(2)(e): (e) the termination of employment of (or the refusal to employ) any person or class of persons in any industry. 38 Here it is contended for the applicant that if there was no constructive dismissal, there is certainly a refusal to employ Mr Walpole - a matter that does not appear to be in issue. 39 A refusal to employ is not a dismissal from employment: Derrick v Dangar [1921] 20 AR (NSW) 40 at 42 per Rolin J. Accordingly, there can be no inconsistency between s 136(1)(d) and Pt 6 of Ch 2 of the 1996 Act. 40 Consequently, I find that the Commission has the power to make orders pursuant to s 136(1)(d) in relation to the respondent's refusal to employ Mr Walpole: see also Orange City Bowling Club v Federated Liquor and Allied Industries Employees' Union of Australia, New South Wales Branch [1979] AR (NSW) 90; Terrigal Memorial Country Club Limited v Federated Liquor and Allied Industries Employees' Union of Australia, New South Wales Branch (1992) 46 IR 145; and Pacific Waste Management Pty Limited v Saley at 343-344. 41 Section 136(1)(a) provides: (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, … 42 In light of my findings in relation to s 136(1)(c) and (d), if the Commission is empowered to make orders under those sections in relation to dismissal or refusal to employ it must follow, in my opinion, that the Commission has power to make a recommendation or give a direction in relation to such matters in the context of an industrial dispute. There is nothing in Ch 2, Pt 6 that ousts the operation of s 136(1)(a). 43 Finally, in his written submissions, Mr Skinner for the respondent contended: If this matter is to be litigated by way of arbitration there is no guidance at all in the provisions of Chapter 3 as to what procedure is to be adopted. Sections 162 and 163(1) of the 1996 Act would apply, untrammelled by considerations such as in s 88 of the 1996 Act, or the specific provisions of the Police Act 1990 dealing with unfair dismissal claims by police officers dismissed under s 181D of that Act - see ss 181F, 181G, 181H, 181I, 181J and 181K of the Police Act . These sections show the concerns of Parliament to provide a special regime for review of dismissals of police officers, with carefully tailored provisions enacted in the light of the special status of police officers and NSW Police. 44 In Bradley George Hosemans v Commissioner of Police [2004] NSWIRComm 253 the Full Bench stated at [104]: 104 We agree with the approach of those authorities. As a matter of statutory construction there can be no doubt that a review under the Police Act is akin to unfair dismissal proceedings under the Industrial Relations Act (subject to limited modifications). Contrary to his Honour's conclusions a review has as its legislative underpinning proceedings under Division 6, Part 2 of the Industrial Relations Act relating to unfair dismissals. The language of s181G(1) of the Police Act unambiguously states that the provisions of the Industrial Relations Act apply to an application for review in the same way as they apply to an application relating to an unfair dismissal under Part 6 Chapter 2 of the Industrial Relations Act subject only to the modifications denoted. Those modifications have no material impact upon the considerations applicable in this matter (and in any event are quite confined). Further, those modifications do not detract in any fundamental sense from what we see is the overriding intention and purpose of s181G, that is, as expressed by the Full Bench in Newton (No 2) to which we have earlier referred. We concur with and reaffirm the view expressed on that occasion (at 80) as follows:

The effect of s 181G of the Police Service Act is that the provisions of the Industrial Relations Act which ordinarily apply to applications brought under s 84 apply to s 181F review proceedings, subject to the there specified modifications. Relevant to the matter of concern raised by Mr Hendy is the limitation placed upon the introduction of new evidence by s 181G(1)(f) and (2); the protection thereby afforded to a dismissed police officer is manifest.

It follows from those various provisions that in procedural respects the hearing of the review proceedings will be conducted in the familiar way, with applicants being in a similar position to that of applicants in proceedings brought under s 84 of the Industrial Relations Act . At the hearing, again from a procedural point of view, the applicant on whom the onus rests will put his or her case, the Commissioner of Police will respond and the applicant will reply. 45 In my opinion, there is abundant guidance available to the Commission in terms of the provisions of the Act and such authorities as Hosemans, and the other authorities relating to the dismissal of police officers, as to the appropriate procedures to be followed in determining this dispute. 46 For the reasons given in this decision I consider there is no jurisdictional impediment to the Commission hearing and determining this industrial dispute. The hearing scheduled for May 2005 will proceed. The parties are directed to confer as to a timetable for the filing and serving of material. Liberty to apply on seven days' notice.

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.

Industrial Relations Act 1979(Vic)

Industrial and Commercial Training Act 1989(NSW)

Industrial Relations Act 1988(Cth)

Industrial Relations Act 1991(NSW)

Local Government Act 1919(NSW)

Occupational Health and Safety Act 1983(NSW)

Police Service Act 1990(NSW)

Workers' Compensation Act 1987(NSW)

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Legislation Cited (14)

Cases Cited (19)