32 Finally, the Association submitted that it was open to the Commission, in the alternative, to provide declaratory relief either by making orders under its general dispute powers or pursuant to s 154 of the Industrial Relations Act. The jurisdiction of the Commission to make declaratory orders is limited to the Commission in Court Session: see s 154. The Commission is not sitting as the Commission in Court Session.
33 I find that the provisions of Pt 6 of the Police Act are not a bar to the Commission exercising jurisdiction in respect of the claim for the reinstatement or re-employment of Mr Walpole.
Section 405 of Industrial Relations Act
34 Section 405 of the Industrial Relations Act provides as follows:
405 Statutory provisions relating to public sector employees
(1) Any award or order of the Commission does not have effect to the extent that it is inconsistent with:
(a) a right of appeal under the Government and Related Employees Appeal Tribunal Act 1980 or the Police Service Act 1990, or
(b) a function under the Police Service Act 1990 with respect to the discipline, promotion or transfer of a police officer, or with respect to police officers who are hurt on duty.
(2) The regulations may provide that an award or order of the Commission has effect despite any right or function referred to in subsection (1).
(3) This section does not affect any decision of the Commission under Part 6 of Chapter 2 (Unfair dismissals).
35 Counsel for the Association contended that s 405 was not a bar to the exercise of the Commission's jurisdiction in this matter. On the other hand, counsel for the respondent submitted provisions in almost identical terms to s 405 of the Act have been considered by the Commission in Public Service Board v Police Association (1985) 20 IR 112 and in Re Hunter District Water Board Appointment [1980] AR (NSW) 950. It was submitted the following propositions emerge from those judgments:
(1) The inconsistency referred to in s.405 requires some direct collision with or abrogation of the "rights, power, authority, duty or function" specified in the sub-section. Police at 116; Hunter decision at 954;
(2) An order or award which specifically directs or prevents a promotion or transfer of a member of the Police Service or a particular outcome in relation to a matter of discipline is an order which is inconsistent with a function of the Police Act with respect to the discipline, promotion or transfer of a police officer … Police at 117;
(3) The inconsistency may arise by a necessary implication in the legislation that a matter is done in accordance with specific legislative provision. Police at 116; Hunter at 954.
36 Mr Pearce, for the respondent, submitted the award sought by the Association specifically directs an outcome with respect to the discipline of a police officer and is, accordingly, beyond the jurisdiction of the Commission by operation of s 405(1)(b) of the Act.
37 In considering the terms of s 405, I note, firstly, there does not appear to be any relevant regulations for the purposes of s 405(2).
38 Prior to the Industrial Arbitration Amendment Act No 38 of 1976, the Commission had only limited jurisdiction under the Industrial Arbitration Act 1940 to make an award or order in respect of public servants, teachers and police: see Public Service Association of New South Wales v Industrial Relations Commission of New South Wales (1985) 1 NSWLR 627; 11 IR 420 at 421-422. The 1976 Amendment Act removed from s 20(1) of the Industrial Arbitration Act most of the restrictions relating to police and the other classes of public sector employees, except s 20(1D) provided that:
Nothing in this Act authorises the making of an award that:
…
(d) is inconsistent with any right, power, authority, duty or function conferred or imposed by or under the provisions of the Police Regulation Act , 1899, with respect to the discipline, promotion or transfer of a member of the police force;
…
39 The 1976 amendments were made following an inquiry and Report by the then President of the Commission, Sir Alexander Beattie, entitled "Access to New South Wales Industrial Tribunals by Public Servants, Teachers in Government Schools and Police". The President's recommendations in relation to the amendments to the Police Regulations Act 1899 included the following:
19.2 Having given careful consideration to the various submissions summarised in sections 16, 17 and 18 of this report, I have reached the conclusion that, having regard to the interests of members of the police force of New South Wales, it is in the public interest that the Industrial Arbitration Act be amended to extend the powers of a conciliation committee (and consequentially, by force of s 30 of that Act, the powers of the Industrial Relations Commission of New South Wales) to make an award affecting the members of such police force (other than the Commissioner of Police, the Deputy Commissioner of Police, the Senior Assistant Commissioner of Police and Assistant Commissioners of Police) by authorising an award to be made for the purposes set out in paras (b) and (e) of s 20(1) of the said Act, subject to the provisos:
(i) that no award shall be made affecting or relating to the discipline, promotion or transfer of members of the force or affecting or relating to any decision of the Commissioner of Police in respect of which an appeal lies to the Crown Employees Appeal Board under s 6(1) of the Police Regulation (Appeals) Act, 1923, as amended, or any statute passed in substitution for or amendment of the same; and
(ii) that no award shall be made derogating from the provisions contained in ss 6, 6A, 9, 10, 10A, 12A, 12B, 12C, 12F, 12G and 18 of the Police Regulation Act, 1899, as amended or from the provisions of the Police Regulation (Superannuation) Act, 1906, as amended or any statutes passed in substitution for or in relation to those Act.
19.3 Just as the Public Service Board (par. 10.16) and the Director-General of Eduction (par 13.3 et seq.) expressed to the inquiry their apprehension that their capacity to carry out the responsibilities imposed upon them by statute would be impaired if the employees with whom they were concerned were granted further access to industrial arbitration, so did the Commissioner of Police, but I am satisfied that, while there are undoubtedly some special considerations applying to members of the police force, the Commissioner's apprehensions have no more foundation that those of the Board and the Director-General."
…
19.11 It is common ground that questions concerning the discipline of members of the police force should be reserved to the Commissioner of Police except in so far as decisions of the Commissioner may be reviewed by the Crown Employees Appeal Board. Reference has been made in par 15.10 to the provisions of Section IX Discipline, of the Police Rules made under s 12 of the Police Regulation Act, and it is my understanding of the common ground between the Commissioner and the Police Association that they agree that no industrial tribunal should be empowered to derogate by award from any of the provisions contained in section IX. The rules include other provisions elsewhere than in Section IX which plainly are also concerned with discipline. I will not attempt to nominate al of them but mention, as examples, rule 1(c) in Section IV, Conditions of Service, dealing with the making of false, misleading or incorrect statements, the destroying or mutilating of official documents, etc., and rule 1(m) in the same section, dealing with liability to punish or dismissal for any one of a number of acts or omissions. The common ground for concerning the exclusion of disciplinary matters extends, as I understand it, both to the formulation of rules concerning discipline and to the implementation of rules by the Commissioner.
…
19.13 Again it was common ground, that, subject to one question concerning appeals by commissioned officers against refusal of promotion, no amendment should be made to the Police Regulation (Appeals) Act concerning the appeals which lie by members of the police force to the Crown Employees Appeal Board or the powers of the Board to deal with those appeals and, further, that jurisdiction should not be conferred on the industrial tribunals to make an award affecting or relating to any decision of the Commissioner of Police in respect of which an appeal lies to the Board, as to which see par. 15.9 ante.
40 The Industrial Arbitration Act was further amended in 1978 by the Industrial Arbitration (Reinstatement Awards) Amendment Act No 99 of 1978, which inserted a new s 20A granting the Commission significantly wider powers in relation to the reinstatement of dismissed employees. In introducing the Bill, the Premier (Mr Wran) addressed the problem posed by an overlap of remedies between the Government and Related Employees Appeal Tribunal Act ("GREAT Act") and the powers conferred on the tribunals constituted by the Industrial Arbitration Act, including the Commission (see New South Wales Parliamentary Debates (Legislative Assembly) 20 February 1980, 4547 at 4551):
As to the problem of duel ( sic ) access, the Government has decided that there should be an option in disciplinary cases so that a person may elect to forego a right of appeal to GREAT and let his union pursue the matter on his behalf through the Industrial Commission of New South Wales. This was particularly sought by a few of the unions, but the essential point is that the decision in each case will be made by the individuals involved. In effect, the arrangement is an extension of that in the Industrial Arbitration (Reinstatement Awards) Act 1978 which was limited to dismissal. As I said earlier, these are important Bills. They restate appeal rights generally for Government employees, they are acceptable to the parties and the Government believes that the new system will be a significant improvement over the existing system.
41 Section 20(1D) was amended by the 1978 Amendment Act to provide an exception for the operation of s 20A, so that the provisions of s 20(1D) allowed for the making of an award by the Commission directing the reinstatement of a public servant, teacher or police officer in accordance with the provisions of s 20A. So the position was that as a consequence of the 1978 Amendment Act the previous provision, which rendered nugatory any award made that was inconsistent with any function, etc., conferred or imposed by or under the provisions of the Police Regulation Act with respect to the discipline, etc., of a member of the police force, was modified to give the Commission the power to reinstate an officer that had been dismissed as part of any disciplinary process.
42 Importantly, this exception to the exclusion of the Commission's power to make an award or order inconsistent with, inter alia, a function with respect to the discipline, etc., of a police officer continued in the form of s 405(3) of the Industrial Relations Act.
43 The immediate legislative predecessor of s 405 was s 349 of the Industrial Relations Act 1991:
(1) [ No jurisdiction to make certain awards ] The Commission has no jurisdiction to make an award or order that:
(a) is inconsistent with any right of appeal under the Government and Related Employee Appeals Tribunal Act 1980 or the Police Regulation (Appeals) Act 1923; or
(b) is inconsistent with any function conferred or imposed by or under the provisions of the Police Service Act 1990 with respect to the discipline, promotion or transfer of a police officer, or with respect to police officers who are hurt on duty.
(2) [ Non-application of section ] This section does not apply to the jurisdiction of the Commission under Part 8 of Chapter 3 (Unfair Dismissals).
44 It may be noted that s 405 does not contain the expression "no jurisdiction" as was the case in the predecessor provision but merely provides that "Any award or order of the Commission does not have effect to the extent that it is inconsistent with …"
45 The position, then, putting aside momentarily the provisions of Divisions 1B-1D of Part 9 of the Police Act, is that notwithstanding an award or order of the Commission is rendered ineffective if it is inconsistent with a function under the Police Act with respect to discipline, etc., of a police officer, s 405 of the Industrial Relations Act does not affect any decision of the Commission under Pt 6 of Ch 2 of that Act. In other words, s 405 does not preclude the making of an order under s 89 of the Industrial Relations Act reinstating a police officer. The use of the term "decision" in s 405(3) has to be taken, in my opinion, as encompassing an order, otherwise s 405(3) would be meaningless. That a decision may encompass an order is confirmed by the definition of "decision" in the Industrial Relations Commission Rules 1996. "Decision" is defined as including "an award, order, direction, contract determination or ruling." I refer also to s 171 of the Industrial Relations Act, which provides:
171 Power to impose conditions
A power of the Commission to make an award, order or other decision includes a power to make the decision subject to such conditions (including exemptions) as the Commission specifies when making the decision ( my emphasis ).
46 Where the provisions of Divisions 1B-1D of Pt 9 of the Police Act have application, it seems to me that notwithstanding the provisions of s 405 of the Industrial Relations Act and s 218 of the Police Act that the provisions of Divisions 1B-1D will operate to the extent of any inconsistency. Whereas s 405 allows for the application of the Act's unfair dismissal provisions, the later statutory provisions, i.e., Pt 9 of the Police Act, limit the operation of those provisions in certain ways. For example, see s 181G of the Police Act. I consider it must necessarily be implied that the general provision of s 405(3) has to be read as being inconsistent with the relevant special provisions in Divisions 1B-1D of Pt 9 of the Police Act but otherwise s 405(3) continues to apply: Goodwin v Phillips (1908) 7 CLR 1 at 14.
47 On another view of the two statutes, of course, and it is probably the view to be preferred, no inconsistency arises because they are easily reconcilable; they stand together.
Section 218 of Police Act
48 As for the operation of s 218 of the Police Act, it provides:
Industrial Relations Act 1996 not affected
(1) The Industrial Relations Act 1996 is not affected by anything in this Act.
(2) Subsection (1) does not limit section 44 or 89 or any provision of the Industrial Relations Act 1996.
49 In Re Steele the Full Bench of the Commission considered an appeal from Bauer J who held that the Commission had jurisdiction to make orders pursuant to the provisions of the Industrial Arbitration Act concerning the transfer of officers employed under the provisions of the Public Service Act 1979. The Public Service Board contended that it was inconsistent with that Act to make any award or order that affected the Board or department head when acting pursuant to s 112 or s 115(2), notwithstanding the provisions of s 8 of the Act.
50 Sections 112 and 115 dealt with the power of a department head to transfer an officer and, upon refusal, the power of the Board to dismiss the officer. Section 8 provided:
Unless otherwise expressly provided, nothing in this Act affects the Industrial Arbitration Act 1940.
51 The Full Bench referred to the judgment in the Court of Appeal in Public Service Association (NSW) and anor v Industrial Commission (NSW) and anor [1985] 1 NSWLR 627; 11 IR 420 where the Court of Appeal considered the interaction between ss 113 and 114 of the Public Service Act and s 8 of that Act. Sections 113 and 114 dealt with the department head's powers in relation to Excess Staff and Excessive Salaries. The Chief Justice, after making reference to the relevant sections and to the High Court's decision in Rose v Hvric (1963) 108 CLR 353, stated:
I have not thought it necessary to do more than summarise the content of the award sought. It is common ground that it is inconsistent in a number of important respects with ss 113 and 114. What, then, is the significance of this inconsistency? In a sense, once the operation of s 8 and ss 113 and 114 are subjected to the tests laid down in Rose v Hvric , the mere statement of the question at issue between the parties points inevitably to its answer. Sections 113 and 114 contain no explicit statement either that they are subject to an award made by the Commission or that they will apply irrespective of an award. They purport to be, and are, enactments of procedures affecting the rights of public servants in their conditions of service in situations of excess staff or excessive salaries. They are positive and affirmative in their form, but inevitably, they contain a negative implication precluding the making of an award inconsistent in operation, or in contradiction, of the enactments in these two sections. Once the assertion by the Association is recognised for what it is - a claim that the Commission has by s 8, a jurisdiction entitling it to override the terms of ss 113 and 114 - its claim must fail. The Commission's jurisdiction in this area is withdrawn in respect of the matters provided for in those sections. At the same time there remains jurisdiction to flesh out or complement the scheme provided always that any such award is not inconsistent in operation with, or contradictory of, the specific provisions of these two sections. In this regard there is no justifiable basis for concluding that the legislature has indicated an intention to preclude the Commission from entering this field at all. Just as in Rose v Hvric (supra) the general sentencing power in the Justices Act could be exercised without contradicting the express sentencing power in the Licensing Act, so, in the present case, there is ample room for the Commission to make an award that 'supplements or operates in tandem with' ss 113 and 114. I agree with the Commission's conclusion in these terms.
52 The Full Bench in Re Steele concluded (at 298) that whilst there was power under the Industrial Arbitration Act to deal with transfers of officers employed under the Public Service Act by way of order or award including a declaratory order, that power was affected by the specific provisions of ss 112 and 115. Accordingly, the Commission was not at large to make any order or award that it may have deemed appropriate in relation to transfer based on considerations such as the need for or the fairness involved in a particular transfer, or its view as to the genuineness or adequacy of the reasons for refusal of a transfer. However, the Full Bench held that where steps purported to be taken or proposed under ss 112 and 115(2) fell outside those sections because extraneous considerations were incorrectly taken into account or the actions of the Board or the department head may have been vitiated for other reasons, an order or award could be made that deferred or prevented a transfer. The Full Bench also held an award or order could be made dealing with ancillary matters such as travelling allowances.
53 Section 218 of the Police Act would appear to be expressed in stronger terms than s 8 of the Public Service Act in the sense that not only is the Industrial Relations Act said to be unaffected by anything in the Police Act but s 218(2) provides that s 218(1) does not limit any provision of the Industrial Relations Act. This would suggest that nothing in the Police Act, except perhaps ss 44 and 89, affected the Industrial Relations Act.