Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Commissioner of Police, New South Wales Police Force

Solicitors: A McRobert (PSA) C Lenard (Commissioner of Police) D Longhurst (Police Association) File Number(s): 2024/56082 2024/56115 Publication restriction: Nil Decision under appeal Court or tribunal: Industrial Relations Commission Citation: [2024] NSWIRComm 1001 Date of Decision: 23 January 2024 Before: Commissioner McDonald File Number(s): 2023/159375 2023/159381

DECISION

1. This is an Application for Leave to Appeal and Appeal brought by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("PSA") against the decision of Commissioner McDonald in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (obo Saraceno) v Commissioner of Police [2024] NSWIRComm 1001 ("Decision"). In the Decision, the Commissioner dismissed a victimisation claim, and industrial dispute proceedings brought by the PSA, seeking relief in respect of alleged improper conduct by the Commissioner of Police ("Police Commissioner") in relation to one of the PSA's members, Mr Tony Saraceno.
2. The Police Commissioner alleged Mr Saraceno engaged in misconduct and breached the NSW Police Force Code of Conduct and Ethics by unauthorised and or improper disclosure of information to the PSA. The PSA commenced the proceedings upon receipt of a letter from the Police Commissioner on 18 May 2024 asking Mr Saraceno to show cause why a penalty should not be imposed directing him to resign or, in lieu thereof, to terminate his employment. In the "victimisation matter", it was alleged by the PSA that the Police Commissioner had victimised Mr Saraceno, contrary to ss 210(1)(a) and 210(1)(g) of the Industrial Relations Act 1996 (NSW) ("Act") because he was a member or an official of an industrial organisation of employees, and was participating, or was proposing to participate, in proceedings relating to an industrial matter. In the "industrial dispute matter", the PSA sought recommendations from the Commission that: 1. the Police Commissioner cease accessing emails from PSA delegates, PSA solicitors and their administrative support staff where those emails are marked, "Sensitive Legal," or are otherwise subject to legal professional privilege ("LPP"); and 2. the parties consult to devise a document that covers procedures for PSA delegates using police email to communicate with the PSA regarding legal proceedings and workplace disputes.
3. In the industrial dispute matter the PSA also sought a determination, pursuant to s 175 of the Act, that reg 76 of the Police Regulation 2015 (NSW) ("Police Regulations") does not apply to PSA delegates who, in exercising their rights as delegates, use the NSW Police Force email system to communicate with the PSA.
4. We have decided to refuse leave to appeal in respect of both applications. Our reasons for that decision follow.

The Decision

1. The background to the proceedings was set out by Commissioner McDonald at [1]-[12] of the Decision in the following terms: 1. Before the Commission are two proceedings, both commenced by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (PSA), seeking redress in respect of what it regards as improper conduct by the Respondent, the Commissioner of Police, in relation to one its members, Mr Tony Saraceno. According to the PSA the Respondent has victimised Mr Saraceno, contrary to ss 210(1)(a) and 210(1)(g) of the Industrial Relations Act 1996 (NSW) (IR Act), because he is a member or an official of an industrial organisation of employees, namely the PSA, and is participating, or was proposing to participate, in proceedings relating to an industrial matter. The Respondent on the other hand, asserts that Mr Saraceno has engaged in misconduct, through the disclosure of confidential information without authority and contrary to reg 76 of the Police Regulation (2015) (NSW) and [accordingly], she proposes to dismiss him if he does not otherwise tender his resignation. 2. The 'proceedings relating to an industrial matter' referred to in the preceding paragraph are proceedings which were commenced in this Commission by the PSA on 21 July 2022 for a new award setting terms and conditions of employment for New South Wales Police Force 'special constables' (Award Proceeding). The proposed new award is to replace the Crown Employees (NSW Police Force Special Constables) (Security) Award 2018 (Security Award). … 5. Tony Saraceno is a special constable. While initially not admitted, the Respondent ultimately conceded that Mr Saraceno was and is a member and delegate of the PSA; and it was intended that he would be a witness in the Award Proceeding. 6. It is not in dispute that during the period August 2017 through to October 2022, Mr Saraceno sent emails to the PSA from his work email address, with information, both in the body of the emails and/or in attachments to the emails, relating to the work performed by special constables. 7. On 14 October 2022, the PSA issued a Summons to Produce to the Respondent in the Award Proceeding. The Summons sought, inter alia, a specific document belonging to the NSWPF, which had been given a particular identification number. The call for this specific document, including by reference to its identification number, apparently suggested to the Respondent (or more accurately, certain persons within the NSWPF) that the PSA knew of the existence of the document and possibility that it already had a copy of the document. The Respondent asserted that the document was confidential in nature and that it ought not to have been disclosed to the PSA without authority. Subsequent inquiry revealed that Mr Saraceno had sent a copy of a portion of the document, which included its identification number, to the PSA by email. 8. In early 2023, Mr Saraceno received correspondence from Chief Inspector Stephen Newton, alleging that Mr Saraceno had engaged in misconduct by accessing information without authority and by disclosing confidential NSWPF information, without authority. Specifically, it was asserted that the disclosure was contrary to Reg 76 of the Police Regulation which provides: 76 Confidential information (1) A member of the NSW Police Force or a student of policing must treat all information which comes to his or her knowledge in his or her official capacity as strictly confidential, and on no account without proper authority divulge it to anyone. (2) In particular, a member of the NSW Police Force or a student of policing must observe the strictest secrecy in regard to NSW Police Force business, and is forbidden to communicate without proper authority in any way to any person outside the NSW Police Force any information in regard to police or other official business connected with his or her duties, or which may come to his or her knowledge in the performance of them. (3) Nothing in this clause operates so as to impede the due performance of operational police duties or to prevent the giving of information if it is reasonable to do so for the purpose of dealing with an emergency when life or property is at risk. (4) Without limiting subclause (3), nothing in this clause operates to prevent the disclosure of information to a registered medical practitioner or registered psychologist in relation to the provision by that health practitioner of medical or psychiatric care, treatment or counselling (including but not limited to psychological counselling) to a member of the Police Force or a student of policing. 9. According to the PSA around the same time that Mr Saraceno was informed of the allegations against him, the Respondent directed Mr Saraceno to cease working in his substantive role at the Sydney Police Centre and directed him to work at the Armory, which the PSA asserted was where special constables and police officers were often sent when they are the subject of disciplinary action. 10. By letter dated 15 May 2023, which he received on 18 May 2023, Mr Saraceno was informed by the Respondent's delegate, Superintendent David Driver, that the alleged misconduct had been made out and that the Respondent was intending to require Mr Saraceno to tender his resignation, and in lieu thereof, to terminate his employment. 11. On 18 May 2023, the PSA filed a Notification of an Industrial Dispute pursuant to s 130 of the IR Act (Dispute Proceeding) in which it sought "the Commission's assistance and … the Respondent's agreement to permanently stay or otherwise dismiss the disciplinary proceedings commenced against Mr Saraceno." Annexed to the Notification was an Application for Relief from Victimisation which was also separately filed by the PSA on 18 May 2023 (Victimisation Proceeding), in which the PSA, on behalf of Mr Saraceno, sought orders pursuant to s 213 of the IR Act for the Respondent to: 1. permanently stay or otherwise dismiss the disciplinary proceedings commenced against Mr Saraceno; 2. remove the disciplinary allegations dated 23 February 2023 and 10 March 2023 and the letter dated 15 May 2023 from Mr Saraceno's personnel file; 3. return Mr Saraceno to his permanent position as a Field Supervisor in the Sydney Police Centre; and 4. any other consequential orders that the Commission sees fit. 12. …I issued a Certificate of Attempted Conciliation in respect of the Dispute Proceeding and I made directions for the two matters to be heard together, with all evidence and submissions filed in one proceeding to be regarded as evidence and submissions in the other proceeding." (References removed)
2. The Decision included a detailed analysis of the applicable statutory provisions and relevant authorities in respect of the industrial dispute (at [14]-[27]) and victimisation matters ([28]-[50]).
3. In respect of the relief sought in the industrial dispute matter, Commissioner McDonald acknowledged that although the issues before her arose out of the specific circumstances involving Mr Saraceno, the relief sought was "directed more broadly and seeks to influence the behaviour of the [Police Commissioner] in the future" ([22]; see also [59]-[61]). The Commissioner then observed (at [23]): "…The Commission may make a recommendation to resolve a dispute pursuant to s 136(1)(a) of the IR Act. Consistent with Police Association of New South Wales v Commissioner of Police, NSW Police Force, there is no requirement that there be a collective element in order of the Commission to grant such relief, although it may be a matter influencing the exercise of the Commission's discretion."
4. The Commissioner opined that s 175 of the Act did not permit the Commission to provide declaratory relief.
5. The Commissioner identified the issues for determination in the industrial dispute as including ([95(1)): 1. Does the Commission have the power to grant the relief sought? 2. Are the factual bases upon which it is contended relief is warranted, established, including: 1. That the Police Commissioner is accessing email from PSA delegates to PSA solicitors and administrative support staff where those emails are marked "Sensitive - Legal" or are otherwise subject to legal professional privilege; 2. If so, has this interfered with the PSA's ability to obtain evidence in reply from Mr Saraceno in relation to the Award proceeding and from other members of the PSA who have 'formed the view that their employment might be threatened and/or adversely impacted' if they participate in the Award proceedings? 1. Does the dispute have a collective element and if not, should the Commission decline to grant relief for this reason? 2. Should the Commission decline to grant relief because the PSA failed to follow the grievance and dispute settling procedures set out in Clause 9 of the Award? 3. Assuming no other impediment, should the Commission grant the relief sought?
6. Commissioner McDonald considered the evidence and made several factual findings relevant to the industrial dispute matter. In respect of the claim of LPP, the Commission found that although some of the communications were exchanged with the dominant purpose of the Award Proceedings (as defined at [2] of the Decision), they were not confidential because they were sent using the Police Commissioner's email system: [96]-[227].
7. The Commissioner decided that she was unable to make the determination sought by the PSA pursuant to s 175 of the Act, that reg 76 of the Police Regulations does not apply to PSA delegates who are exercising their rights as delegates to use the Police email system to communicate with the PSA. The basis for this decision was that the relief sought was declaratory in nature and beyond the Commission's power ([229]-[230]).
8. Commissioner McDonald decided not to make the recommendations sought by the PSA in the industrial dispute matter (see [2] (1) and (2) above) for reasons including that the emails were not confidential and therefore not subject to LPP and that the PSA had published the Delegate's Handbook which contained the relevant guidance to its members about communicating with it: [231]-[236].
9. The Commissioner provided additional reasons why she would not have granted the relief sought by the PSA including that: 1. there was no evidence to support the contention that the industrial dispute contained a collective element and she was not persuaded that there was a need for the Commission to intervene by making the recommendations sought: [237]-[238]; and 2. part of the dispute was captured by the dispute resolution procedure in the relevant award, which was not followed: [241]-[242]; and 3. there was no evidence that Mr Saraceno requested permission to disclose the information referred to in the Annexures to the Allegations letter and no evidence that the Police Commissioner was unreasonably impeding communications between delegates and the PSA: [243].
10. In respect of the victimisation matter, the Commissioner addressed as a preliminary question, the scope of the claim ([62]-[93]). The Commissioner's analysis in this regard was the subject of the grounds of appeal and is considered in greater details below: see [34]-[53]. Ultimately, the Commissioner concluded that the victimisation claim was limited to ([91]): 1. the initiation of a disciplinary investigation by the Professional Standards Command of the NSW Police Force ("PSC") following the receipt of the referral or complaint from the Security Management Unit ("SMU"); 2. the continuation of the disciplinary investigation by the PSC; 3. the making of allegations of misconduct; 4. the findings of misconduct; and 5. the threat of termination.
11. The Commissioner found that the steps taken within the SMU and in particular by Superintendent McDonald prior to the disciplinary investigation were not necessarily irrelevant. However, ultimately the Commissioner found that they were in fact irrelevant, deciding that those steps did not materially influence the decisions relating to the matters within the scope of the claim.
12. The Commissioner identified the following issues for determination in the victimisation matter (95): 1. Has the Police Commissioner rebutted the presumption that Mr Saraceno was investigated by the PSC after 27 October 2022; alleged to have engaged in misconduct; found to have engaged in misconduct; and threatened with termination, because he was a member and delegate of the PSA and/or he proposed to participate in the Award proceeding? 2. If not, should the relief sought be granted?
13. The Commissioner analysed the Police Commissioner's evidence at length before concluding that the she had discharged her onus and the victimisation matter was dismissed: [96]-[227]. Relevantly, the Commissioner decided that: 1. the decisions of Chief Inspector Newton and Superintendent Driver were not materially influenced by any motivation Superintendent McDonald may have had leading to the complaint to them about Mr Saraceno's conduct; 2. the principles in Browne v Dunn (1894) 6 R(H) 67 precluded the PSA from advancing a contention that Chief Inspector Newton was activated to investigate Mr Saraceno by a proscribed purpose; 3. Chief Inspector Newton was a reliable and honest witness; and 4. Superintendent Driver's evidence that he reviewed and assessed the evidence and, independently formed a view that Mr Saraceno had engaged in misconduct should be accepted.
14. We have considered this analysis as it arises in the context of the applications in greater detail below. Ultimately, the Commissioner found that the Police Commissioner rebutted the presumption that Mr Saraceno was: 1. investigated by the PSC after 27 October 2022; 2. alleged to have engaged in misconduct; 3. found to have engaged in misconduct; and 4. threatened with termination, because he was a member and delegate of the PSA and/or he proposed to participate in the Award proceeding.
15. These findings were dispositive of the victimisation matter.

The PSA's applications for Leave to Appeal and Appeal

1. The PSA's Amended Application for Leave to Appeal and Appeal in respect of the victimisation matter included the following: REASONS WHY LEAVE TO APPEAL SHOULD BE GRANTED 1. The proceedings below involved alleged victimisation of a union delegate, Mr Tony Saraceno, in circumstances where the delegate was providing instructions to the union for legal proceedings, and accordingly has wide ranging implications for all unions and their delegates and members conducting litigation, particularly but not only in this Commission. 2. In finding that the respondent was denied procedural fairness the Commission ignored that the respondent bears the onus of overcoming the presumption that the respondent victimised the applicant. 3. The decision introduces and/or applies strict rules of pleading that are inimical to the long history of the conduct of proceedings in the Commission and are wrong. 4. The decision discloses an erroneous approach by the Commission to the identification by an applicant of acts of victimisation. 5. The decision discloses error in the interpretation and application of s.210(2), in that the Commission held that an employer can discharge the onus in s.210(2) by relying on reasons for victimising an employee (being reasons other than those set out in s.210(1)), even where those reasons are incorrect or are otherwise unsupported by the evidence. QUESTIONS OF LAW 1. Whether the Commission: a. wrongly found that the respondent had been denied procedural fairness in relation to the allegation that part of its victimisation of Mr Saraceno was by the Security Management Unit ("SMU") commencing an investigation into Mr Saraceno prior to 27 October 2022, in relation to the provision by him of information to the PSA for the purposes of prosecuting the Award Proceeding ("the SMU victimisation"); b. wrongly prevented the appellant from relying on the SMU victimisation allegation; and/or c. further erred by refusing to draw an adverse inference from the respondent's failure to call Superintendent McDonald. 2. Whether the Commission erred in its determination as to what is required to provide procedural fairness to a respondent in a victimisation claim. 3. Whether the fact of the presumption in s.210(2) of the Industrial Relations Act 1996 affects the parties' respective entitlements to procedural fairness. 4. Whether the Commission's finding that the PSA was not permitted to rely on allegations of victimisation a. unless they were raised in material flied and served prior to the date when the Respondent's evidence was due; and b. without seeking and obtaining leave to amend the Application for relief from Victimisation i. involves Wednesbury unreasonableness; and/or ii. is inconsistent with the exercise of the Commission's jurisdiction, including pursuant to s.146 of the Industrial Relations Act (NSW) 1996; and/or iii. was otherwise attended by error including but not limited to circumstances where: c. the applicant had adequately articulated the acts of victimisation as involving targeting Mr Saraceno in a disciplinary process as a consequence of his role as union delegate and/or as a witness in the Award proceedings. d. it was the respondent's evidence that for the first time allowed the PSA to identify the earliest steps taken by the respondent in the disciplinary process against Mr Saraceno. 5. Whether the Commission failed to exercise its jurisdiction or otherwise erred in relation to the tension between s.210 of the Industrial Relations Act and Clause 76 of the Police Regulations 2015. 6. In circumstances where the respondent's witnesses inter alia: a. Accepted that they had not reviewed all the evidence of alleged misconduct. b. Accepted that that some of the evidence did not amount to misconduct. whether the Commission erred in excluding this evidence from consideration of whether the respondent victimised Mr Saraceno, including constructively failing to exercise its jurisdiction in this respect. 7. Whether the Commission erred in finding that a respondent's reason for disadvantaging an employee that is subsequently found to be objectively wrong is nevertheless enough for the respondent to discharge the onus, and for proceedings to be dismissed. APPEAL GROUNDS 1. The Commission. a. erred in finding that the respondent had been denied procedural fairness in relation to the allegation that it victimised Mr Saraceno in that the SMU conducted an investigation commencing in or about October 2022 (but prior to 27 October 2022) in relation to the provision of information to the PSA for the purposes of prosecuting the Award Proceeding ("the SMU victimisation"). b. erred in preventing the appellant from relying on the SMU victimisation allegation. c. in refusing to allow the PSA to rely on the SMU victimisation allegation, the Commission further erred by refusing to draw an adverse inference from the respondent's failure to call Superintendent McDonald. 2. Further and/or in the alternative to (1) the Commission erred at law in refusing to exercise its jurisdiction by reason of its failure to deal with the SMU victimisation. 3. Further and/or in the alternative to (1) and (2) the Commission erred at law in considering, or failing to consider, the tension between s.210 of the Industrial Relations Act and Clause 76 of the Police Regulations 2015. 4. The Commission erred at law in failing to exercise its jurisdiction under s.210 by reason of the finding that the respondent's witnesses had a basis to believe that that Mr Saraceno: a. Was not an authorised person within the terms of Clause 76 of the Police Regulations 2015 b. That the emails sent by him were confidential including but not only having regard to the respondent's witness's evidence whereby they: i. Accepted that they had not reviewed afl the evidence of alleged misconduct ii. Accepted that that some of the evidence did not amount to misconduct. 5. The Commission erred in finding that s.210 operates in such a way that a statement by a respondent as to why the respondent has disadvantaged an employee is sufficient to discharge the onus on an employer, even if the reason given in the statement is objectively wrong.
2. The PSA's Amended Application for Leave to Appeal and Appeal in respect of the industrial dispute matter included the following: REASONS WHY LEAVE TO APPEAL SHOULD BE GRANTED 1. The proceedings below involved a dispute notification seeking two recommendations pursuant to s.136, and a determination pursuant to s.175, of the Industrial Relations Act 1996 concerning the application of Clause 76 of the Police Regulations 2015 to Tony Saraceno who at all material times was and is a union delegate. 2. The Commission. a. wrongly adopted; and/or b. wrongly applied a requirement for a collective element in dispute matters. The decision involves important matters related to the meaning of "legally professionally privileged" in the context of communications from a union delegate to union lawyers. 3. The appeal raises important issues in relation to the application of s.175 of the industrial Relations Act, in particular involving the distinction between an interpretation and a declaration. 4. The decision has potential far reaching consequences for union delegates and other employees of NSW Police to whom Regulation 76 applies. 5. The decision has potential far reaching consequences for union delegates communicating with union lawyers using workplace emails. 6. The decision has potential far reaching consequences for the parties to disputes and other legal proceedings. QUESTIONS OF LAW 1. Whether the Commission erred in refusing or failing to exercise its jurisdiction under s.175 of the Industrial Relations Act 1996. 2. Whether the Commission erred in finding that whether a dispute notified pursuant to s.136 of the Industrial Relations Act 1996 has a collective element is relevant to the exercise of its discretion in relation to the making of recommendations. 3. Whether the Commission erred in determining that the dispute did not have a collective element. 4. Whether the Commission erred in finding that the communications by Mr Saraceno to a. The PSA solicitor; and/or b. the PSA legal team were not legally professionally privileged, including but not limited to the Commission erring by finding that the emails were not confidential. APPEAL GROUNDS 1. To the extent that the Commission concluded that the application to interpret Clause 76 under s.175 of the Industrial Relations Act amounted to an application for a declaration, it was wrong to do so. 2. The Commission erred in determining that the absence of a collective element was material to the exercise of the Commission's jurisdiction below. 3. Strictly in the alternative to (2), and (3), if a dispute lodged for the purposes of obtaining a recommendation does require a collective element, then the Commission wrongly concluded that the dispute herein did not have a collective element, having regard matters including that the application of Clause 76 to Mr Tony Saraceno affected him in instructing and/or giving evidence in an application for a new Award to rectify undervaluation of approximately 185 special constables employed by the respondent. 4. The Commission erred at law in: a. Failing to provide adequate reasons for dismissing the dispute notification: b. Failing to exercise its jurisdiction by reason of its failure to deal with the dispute notification. 5. The Commission erred in finding that emails sent by a union delegate to the union lawyers acting for the union in the Award proceedings were not legally professionally privileged at large, and specifically by finding that the emails were not "confidential". 6. Further and/or in the alternative the Commission erred at law in: a. Failing to provide adequate reasons for dismissing the dispute notification; b. Failing to exercise its jurisdiction by reason of its failure to deal with the dispute notification.

The Police Association's application to intervene

1. At about 4:50 pm on 19 June 2024 (the day before the hearing of the applications), the Police Association of NSW ("Police Association") filed a Notice of Motion seeking leave to intervene in the victimisation appeal proceedings. The Police Association also sought an adjournment of the hearing of the appeals. The Notice of Motion was made returnable at 10 am on 20 June 2024. The Full Bench granted leave to the Police Association to make submissions in respect of Appeal grounds 3 and 4 of the victimisation appeal, but only to the extent these differed from the PSA's submissions. The Full Bench dismissed the Police Association's application to adjourn the proceedings. By consent, directions were made for the filing and service of written submissions by the Police Association after the hearing of the matter with an opportunity for the parties to respond.

Principles applying to Leave to Appeal

1. An appeal to a Full Bench of the Commission may be made only with the leave of the Full Bench: s 188(1) of the Act. Further, s 188(2) of the Act provides that 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. The parties agreed that the principles applying to the granting of leave are settled. These were recently set out by the Full Bench in Mallegowda v Transport Secretary [2024] NSWIRComm 1018. We confine ourselves to referring to, without reproducing them, the observation of the Walton J in Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association (2022) 320 IR 249; [2022] NSWSC 1178 at [21].
3. The parties agreed that the relevant principles can be summarised as follows (PSA's leave submissions filed 9 May 2024): "2. The principles applicable to the grant of leave were recently set out in Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association [2022] NSWSC 1178 (Walton J, at [21]), and can be relevantly summarised as follows: 2.1. Generally, the Full Bench is likely to grant leave where the issues in the appeal are of some novelty, raise substantial issues of law and principle, and have implications for the wider jurisprudence of the Commission; 2.2. Leave will not be lightly or automatically granted; 2.3. For leave to be granted, error must be demonstrable and not merely that the appellate tribunal would have come to a different view. The Full Bench should not substitute its own views as to a decision that was reasonably open at first instance; 2.4. An applicant on leave is not required to establish the contended errors. Leave will be attracted if the Full Bench is satisfied that the appeal raises serious issues to be tested, are reasonably arguable and are of a nature proper to attract leave to appeal; and 2.5. It is relevant to consider whether the appeal raises issues going to the proper administration of justice."
4. We agree with the Police Commissioner that the following additional principles emerge from the authorities (Police Commissioner's leave submissions at [5]): "(a) the raising of a jurisdictional issue does not, of itself, warrant a grant of leave. The Full Bench must determine whether there is a demonstrable case that the Commission below exceeded, or failed to exercise, jurisdiction; (b) leave will ordinarily be refused where an appellant raises arguments on appeal that were not squarely raised at first instance; (c) mere contests as to findings of fact which might otherwise remain open on the evidence will generally, in the absence of other considerations, not attract leave. The Full Bench should not interfere with factual findings, unless the view is formed that those findings were not reasonably open on the evidence; and (d) discretionary decisions must be shown to be affected by a 'House v The King' error." (References omitted)

Leave to appeal - Victimisation appeal

1. It is convenient to consider the PSA's submissions on leave to appeal in respect of the victimisation matter first. The PSA contended that leave to appeal should be granted in the victimisation matter for the five reasons contained in the Application for Leave to Appeal and Appeal, as set out above at [20]. These grounds significantly overlap and can be categorised as follows: 1. The Commissioner determined that a formal amendment to the originating application was necessary prior to the date when the Police Commissioner's evidence was due, in order for the PSA to rely on acts performed at that time ("the SMU victimisations claim") as constituting victimisation: per [8] of PSA's leave submissions (Leave to Appeal grounds 2, 3, and 4) (Strict pleading argument). 2. The Commissioner erred in respect of her findings that the decision-maker's reasons for their actions did not have to be correct for them to be accepted (Leave to Appeal ground 5) (Correctness of the decision-maker's reasons).
2. The PSA contended that leave to appeal should be granted because the decision has wide ranging implication for all unions and their delegates and members conducting litigation, particularly but not only in this Commission (Leave to Appeal ground 1).

Strict pleading argument - the decision to exclude the SMU investigation claim from the Victimisation matter

1. The PSA argued that the approach taken by the Commissioner in excluding the SMU investigation from the victimisation claim had the effect of creating a requirement of strict pleadings. It was submitted that this was unreasonable and unfair in a jurisdiction where applicants are typically ignorant of the process undertaken by the employer with respect to the disciplinary process. The PSA put that the Commissioner's approach in this regard was contrary to the intention of the statute in reversing the onus of proof in victimisation matters, imposed an unworkable practical limitation, and frustrates the proper administration of justice.
2. The PSA's strict pleading argument was further developed in the PSA's substantive appeal submissions through Appeal grounds 1 and 2: see [20] above. It is convenient to reproduce those grounds here, for ease of reference: "1. The Commission. a. erred in finding that the respondent had been denied procedural fairness in relation to the allegation that it victimised Mr Saraceno in that the SMU conducted an investigation commencing in or about October 2022 (but prior to 27 October 2022) in relation to the provision of information to the PSA for the purposes of prosecuting the Award Proceeding ("the SMU victimisation"). b. erred in preventing the appellant from relying on the SMU victimisation allegation. c. in refusing to allow the PSA to rely on the SMU victimisation allegation, the Commission further erred by refusing to draw an adverse inference from the respondent's failure to call Superintendent McDonald. 2. Further and/or in the alternative to (1) the Commission erred at law in refusing to exercise its jurisdiction by reason of its failure to deal with the SMU victimisation."
3. Appeal grounds 1c and 2 only require attention if the appellant is successful in establishing that Commissioner McDonald erred in not allowing the PSA to pursue the SMU victimisation claim.
4. Appeal grounds 1 and 2 are without substance. In the Decision, the Commissioner considered at length the statutory framework and applicable law in respect of the two matters before her (specifically at [28]-[50] in respect of the victimisation matter). At [31] of the Decision, the Commissioner concluded, that before the onus shifts to the employer in a victimisation case, the applicant or industrial organisation on their behalf, must first: 1. establish that they have suffered a detriment within the meaning of s 210(2); and 2. establish the existence of a protected matter, as listed in s 210(1); and 3. allege that the detriment was suffered because of the protected matter referred to in s 210(1).
5. The Commissioner stated at [51]: "51.The nature of proceedings under s 213 of the IR Act and the obligation on a respondent to rebut the presumption set up pursuant to s 210(2) means that it is important that the respondent understands precisely: (1) what action the employee alleges the respondent engaged in that caused the employee detriment; and (2) which of the protected matters listed in s 210(1) it is alleged the employee enjoyed, so the respondent can first, if it wishes, answer the allegation that the employee suffered detriment by reason of the respondent's action and/or that the employee enjoyed one of the protected matters listed in s 210(1) and then, if it considers it needs to do so, lead evidence to satisfy the Commission that the alleged matter referred to s 210(1) was not a substantial and operative cause of the detrimental action. As Chief Commissioner Constant explained in Kinninmont v Ku-ring-gai Council [2020] NSWIRComm 1064: 78. The nature of proceedings under s 213 of the IR Act, and the obligation on the respondent to adduce evidence of the central issue to rebut the reverse onus mean there is a need for an allegation to identify precisely and distinctly the alleged reason, or the alleged intent, for the contravening conduct so that the respondent can lead evidence in the proceedings to rebut the presumption. An applicant wishing to take advantage of the presumption, in addition to making the allegation in a form that meets the requirements of s 210, must provide sufficient information about the action, and the related reason and/or intent for which that action was taken, to show that, in combination, they would constitute a contravention of a provision of s 210. 79. Before an employer can disprove an alleged contravention it must be clearly stated. It is impermissible in this statutory scheme to require the respondent to distil or interpret, or go looking for, the allegations to which it must respond, and about which it must lead evidence in order to displace the presumption. It is not sufficient for the applicant to assert that the respondent could have asked for further and better particulars. Although the Commission is not a court of strict pleadings, this does not absolve a litigant from being required to enunciate its case in a consistent and clear manner and the respondent cannot be held to the reverse onus in respect of matters not clearly articulated in the Amended Victimisation Application but raised in final submissions."
6. Commissioner McDonald addressed the issue of the scope of the victimisation matter at [62] to [92] of the Decision. For reasons of brevity, we have not reproduced those reasons here.
7. The PSA has not contested the Commissioner's chronology of how its case unfolded before the Commission. In particular, the PSA did not cavil with the Commissioner's finding at [74] of the Decision that the allegations that: 1. the investigation in relation to the provision of information to the PSA commenced in or about October 2022; and 2. that failing to retrospectively authorise Mr Saraceno to provide the information to the PSA in his role as a witness in the Award proceeding and/or a union member/delegate, were raised for the first time in their reply submissions filed the day before the hearing. Further, it was not in dispute that there was no application for amendment to the application in the victimisation matter filed 18 May 2023 ("Victimisation Application").
8. The PSA argued that the Police Commissioner was squarely on notice with respect to the particulars of the claimed victimisation by the terms of the Victimisation Application and its outline of submissions in chief filed on 1 June 2023. To the extent Commissioner McDonald found otherwise, the PSA argued the Decision was wrong.
9. The PSA submitted that it was apparent from the Victimisation Application that it was challenging actions taken against Mr Saraceno that appeared to be directly related to his role as union delegate and witness in the Award proceedings, and that the Victimisation Application was not limited to a complaint about the contents of the show cause letter, but rather that letter, and "everything that preceded it and upon which that letter was founded." Thus, the PSA claimed it had given sufficient notice of the context within which the victimisation took place in the Victimisation Application and that the allegations "related to [Mr] Saraceno's role as a union delegate and specifically in fulfilling that role vis-a-vis, and appearing as a witness in, the Award proceedings that commenced in July 2022."
10. We agree with Commissioner McDonald's conclusion at [65]-[66] of the Decision that the Victimisation Application identified the alleged victimisation by the Police Commissioner as:
11. making allegations of misconduct against Mr Saraceno;
12. directing Mr Saraceno to work at the Armory;
13. making findings of misconduct against Mr Saraceno and proposing termination after giving him an opportunity to resign; and
14. accessing (allegedly confidential) communications and documents between Mr Saraceno and the PSA's lawyers.
15. At [30] to [31] of the Decision, the Commissioner observed: "Section 210(2) sets up a rebuttable presumption that if an employee has suffered a detriment, it will have been suffered due to one of the prohibited reasons set out in s 210(1). However, it is incumbent upon the employee to first identify and establish the existence of a proscribed factor in s 210(1) before the onus will shift to the employer to prove that the proscribed factor was not a substantial and operative cause of the detrimental action: Twentieth Superpace Nominees v TWU [2006] NSWIRComm 218 at [43], cited with approval in Kinninmont at [62], [84]; Basan v Commissioner of Police (No 3) [2023] NSWIRComm 1028 at [53]. In other words, before any onus shifts to the employer, the applicant employee (or industrial organisation on their behalf) must first: (1) establish that they have suffered a detriment within the meaning of s 210(2); and (2) establish the existence of a protected matter, as listed in s 210(1); and (3) allege that the detriment was suffered because of the protected matter referred to in s 210(1)."
16. The above statement of principle is well settled and clearly correct. An applicant must establish the three matters identified by Commissioner McDonald before the reverse onus comes into operation pursuant to s 210(2).
17. The protected matter, as listed in s 210(1) of the Act was clearly articulated by the PSA in the Victimisation Application and ultimately uncontentious in the proceedings. However, the Victimisation Application did not allege that Mr Saraceno suffered a detriment other than in respect of those matters set out at [66] of the Decision and repeated at [38] above.
18. The PSA did not contest the Commissioner's finding in the Decision that, "[t]he only reference to the acts said to constitute [the SMU] victimisation is found in paragraph 19 of the AOS [PSA's Submissions]". That paragraph, reproduced in the Decision, was in the following terms: "Everything done by the respondent in initiating and continuing the disciplinary investigation into Mr Saraceno's conduct has been done with the respondent's full knowledge that all of the alleged misconduct was engaged in as part of Mr Saraceno's duties as a delegate."
19. The Commissioner decided that paragraph [19] of the PSA submissions (filed before the Police Commissioner's evidence was due) made sufficiently clear to the Police Commissioner that the claim for victimisation included ([91] of the Decision): (1) the initiation of a disciplinary investigation by the PSC following the receipt of the referral or complaint from the SMU; (2) the continuation of the disciplinary investigation by the PSC; (3) the making of allegations of misconduct; (4) the findings of misconduct; and (5) the threat of termination.
20. The PSA submitted that it was not open to the Commissioner to find that "the disciplinary investigation" into Mr Saraceno for misconduct, "was separate and different to the two antecedent audits of emails undertaken by the PSC at the behest of the SMU ...": [90] of Decision. The PSA relied upon two bases for this submission. First, the PSA submitted that the evidence about the two-antecedent audits of emails was hearsay evidence that was admitted on the limited basis that did not permit the Commission to rely on it in this way in its analysis. Second, it was put that the Commission's analysis is inherently inconsistent. The PSA claimed that the Commission allowed it to rely on the start of the disciplinary investigation by the PSC, despite the PSA not knowing the exact process before the first allegation letter on 15 February 2023, but including the whole period from the Award application in July 2022: [20]-[26] of PSA's submissions in the victimisation appeal filed 9 May 2024 ("PSA victimisation appeal submissions").
21. In our view, the Commissioner gave a generous construction to the written submissions of the PSA in allowing it to pursue the additional points of victimisation relating to the initiation and continuation of the "disciplinary investigation", despite these not being identified in the Victimisation Application. In doing do, the Commissioner was acting consistent with s 163(1)(a) and (c) of the Act, adopting a less formal approach to the requirements of pleading a case that would be necessary in a Court. It was open to the Commissioner to conclude, based on the evidence of Chief Inspector Stephen Newton, that the "disciplinary investigation" was initiated by him, as the person responsible for managing all misconduct processes relating to administrative employees of the NSW Police Force, following an assessment of the complaint referred by Superintendent McDonald: see affidavit of Newton at [2]; [5]-[9]. We can see no appealable error in the analysis undertaken by the Commissioner and the conclusions reached in this regard.
22. Further, the Commissioner's decision to allow the PSA to pursue the initiation and continuation of the "disciplinary investigation" as points of victimisation, was not related to the PSA's knowledge of the exact process prior to the first allegation letter. Rather, the Commissioner allowed the PSA to pursue these matters because they were identified by the PSA with sufficient particularly for the Police Commissioner to understand the specific acts constituting the alleged detriment or act of victimisation and were raised at an appropriate time, not in reply submissions.
23. The PSA submitted that the case was not run on the basis of pleadings, with the Police Commissioner at no time filing a response. The PSA observed that there was no direction made to file points of claim or defence, or otherwise further articulate the claim. It was observed that the Police Commissioner made no complaint with respect to the scope of the victimisation claim or any inability to understand its scope.
24. The Commission is not a Court and there is no legislated requirement for the parties to plead their cases as they might be if it were. However, as was observed by the Commissioner in the Decision, the Commission is required to act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms: s 163(1)(c) of the Act. We endorse the statement of then Chief Commissioner Constant in Kinninmont v Ku-ring-gai Council [2020] NSWIRComm 1064 at [78]-[79] as referred to by the Commissioner at [51] of the Decision and set out above at [35] above. It is fundamentally unfair, especially under a reverse onus, to require a respondent to identify the act the applicant may argue constituted a detriment for a prohibited reason. In fairness, the detriment alleged must be precise and clear, to allow the respondent to effectively rebut the presumption. The respondent should not be left to interpret or seek out the allegation and the applicant must establish the detriment itself before the reverse onus comes into operation.
25. The circumstances in Kinninmont were analogous to the matter at hand. We do not read the Decision as suggesting that the Commission should operate on the basis of formal pleadings, even if the Commissioner did adopt the language of pleadings in the Decision at various points: see for example [50] and [81]-[83]. Indeed, this was evidenced from the fact that the Commissioner allowed the PSA's points of victimisation to be expanded based on the allegations contained in their written submissions in chief. The Commissioner was clearly concerned with the extent to which the PSA had articulated the basis of the victimisation, specifically the detriment alleged to have been suffered. We can see no error in the Commission's analysis and decision to refuse to allow the PSA to rely on the SMU victimisation claim on the basis she did. The particulars of the SMU victimisation claim were only provided in the PSA's reply submissions, after the Police Commissioner had filed its evidence. Accordingly, the Commissioner did not err in determining that it was incumbent upon the PSA to formalise its SMU victimisation allegation by way of application.
26. We do not agree with the PSA's submission that the Decision runs contrary to the statutory intention of the reverse onus. The statutory intention of the reverse onus does not operate so to require the respondent to establish the alleged detriment done for a prohibited reason. It exists because the reasons behind the detrimental action, which the applicant must identify and establish, are ordinarily uniquely within the respondent's knowledge.
27. We agree with the Police Commissioner that the PSA did not establish that Mr Saraceno suffered a detriment because of the actions of Superintendent McDonald. As was observed by Commissioner Newall in Health Services Union v New South Wales [2017] NSWIRComm 1036 ("Bruce"), victimisation under s 210 occurs only when an employee suffers a "detriment". The finding of a detriment must be based on evidence and not assumptions: [18]-[21]. During oral submissions before the Full Bench, the PSA clarified that its case was that the detriment suffered was the threat to terminate, not the SMU investigation itself. The PSA argued that the Police Commissioner was obliged to discharge the reverse onus in respect of the cumulative process leading to that point, including the SMU investigation: Tcpt, 20 June 2024 at pp 36-37. In this regard, the PSA submitted that to the extent it sought to particularise the victimisation claim in its submissions in response, it potentially led Commissioner McDonald into error, because it was not obliged to particularise the victimisation in this way: Tcpt, 20 June 2024, p 31 (47) - p 32 (9).
28. The asserted detriments Mr Saraceno suffered as identified by the PSA, including in the appeal, were related to the decisions made by Chief Inspector Newton and Superintendent Driver who gave evidence for the Police Commissioner as set out above at [14]. Commissioner McDonald found that Superintendent McDonald did not have a material effect on either the actions of Chief Inspector Newton or Superintendent Driver: [174]-[180]. Accordingly, the Commissioner concluded that his motivations were not relevant to the proceedings and the Police Commissioner was not required to call Superintendent McDonald to discharge the onus. That is not a factual finding that has been challenged in this appeal.
29. We also consider that the decision not to allow the PSA to rely upon the SMU victimisation claim turned on its own facts and as we have already explained, we can see no error in the approach adopted by the Commissioner in doing so.
30. For these reasons, we do not grant leave to appeal on the basis of Leave to Appeal grounds 2, 3 and 4 in the victimisation appeal.

Correctness of the decision-maker's belief

1. Leave to Appeal ground 5 is: "The decision discloses error in the interpretation and application of s.210(2), in that the Commission held that an employer can discharge the onus in s.210(2) by relying on reasons for victimising an employee (being reasons other than those set out in s.210(1)), even where those reasons are incorrect or are otherwise unsupported by the evidence."
2. By Appeal grounds 4 and 5, the PSA sought to impugn the Decision in so far as the Commissioner accepted the evidence of Chief Inspector Newton and Superintendent Driver as to their belief that Mr Saraceno engaged in misconduct.
3. Appeal ground 4 in effect argues that it was not reasonably open for the Commissioner to make the relevant finding (the respondent's witnesses' believed that Mr Saraceno was not authorised to send the information to the PSA and the information sent was confidential police information), leading ultimately to the Commission's conclusion that the respondent's witnesses were not motivated by the prohibited attribute. The PSA's written and oral submissions did not meaningfully develop this argument.
4. The PSA's written submissions argued that the Commissioner incorrectly applied the law by finding that the prohibited attribute was not a substantial and operative cause of the detrimental action, even if the respondent's witnesses' beliefs were wrong: PSA's victimisation appeal submissions at [40]. The PSA submitted that "the presumption in [the Act] operates in a direct way so as to protect a person from the outset, if a factor in s 210(1) applies to them. It was put that this operates differently to Ch 3 of the Fair Work Act 2009 (Cth) ("FW Act"), where the applicant must assert that adverse action was taken for a prohibited reason; in NSW, the legislation presumes that the detrimental action is attributable to the s 210(1) factor [unless] the employer can demonstrate that the s 210(1) factor was not a "substantial and operative cause" of the detrimental action: [36] of PSA victimisation appeal submissions. In making this submission, the PSA did not refer to the legislative history or any case law to support its position.
5. The PSA argued that the Commissioner fell into error by applying the principle considered in Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] 238 FCR 27 ("Dawson") and finding that the Commission's role in determining an application made pursuant to s 213 is "to ascertain the reasoning actually employed by the relevant decision maker, regardless of whether that reasoning is right or wrong, and to then assess whether the reason was a prohibited reason as proscribed in s 210": at [44] of the Decision. The basis of this submission was that Dawson was considered after the Full Bench decision in Paula Lee and Ausgrid (No 6) [2013] NSWIRComm 62; 237 IR 63 ("Paula Lee and Ausgrid"), where the Full Bench applied the principles in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500 ("Barclay") despite observing there are differences in the reverse onus provisions contained in s 361 of the FW Act and s 210 of the Act.
6. The PSA argued, "[f]urther or in the alternative, in the particular facts of these proceedings the s 210(1) factors that afforded FS Saraceno protection from victimisation were so intrinsically embedded in the steps undertaken by CI Newton and Supt Driver in assessing the misconduct as to render any 'mistake' in that assessment insufficient to discharge the onus": at [41] of PSA's victimisation appeal submissions.
7. In our view, it was open to the Commissioner to make the findings challenged by Appeal ground 4 and the PSA did not present a persuasive argument to the contrary. Commissioner McDonald accepted the direct evidence of the respondent's witnesses denying their actions were motivated by the prohibited attributes. The Commissioner considered and addressed the PSA's arguments that their evidence ought not to be accepted as to why they engaged in the detrimental conduct for reasons including that they had not reviewed all the evidence of alleged misconduct and accepted that some of the evidence did not amount to misconduct: see [171]-[173]; [205]-[227] of the Decision. These admissions were not necessarily inconsistent with the Commissioner's findings with respect to the motivations of the witnesses. That is to say that it remained open to the Commissioner to none the less accept the evidence of the respondent's witnesses as she did. As Walton J identified in setting out the principles on leave in Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association [2022] NSWSC 1178 at [21(6)]: "[T]he Full Bench should not interfere with findings of fact unless the Full Bench is of the opinion that they were not reasonably open on the evidence: Hussman Australia Pty Ltd v Walker (1993) 31 NSWLR 189 at 201 (Hill J)."
8. We reject the PSA's submissions the Commissioner erred in her analysis of the law and the relevance of the principles espoused in Barclay and Dawson. The Full Bench in Paula Lee and Ausgrid stated in respect of Barclay (at [64]): "…..the parties' reliance upon the judgment in Barclay is well founded, at least to establish the proposition that it will be necessary, in adjudicating upon matters brought under Pt 8 of Ch 5 of the Act, to consider the direct evidence of the decision-maker as to their state of mind, intent and purpose (assuming such evidence was brought by the respondent to the proceedings seeking to rebut the statutory presumption). Having regard to the judgment of French CJ and Brennan J in Barclay (at [44]), that conclusion must follow because of the statutory expression "because" in s 210(1) (see, also, the judgment of Gummow and Hayne JJ at [101]) and the nature of the statutory presumption in s 210(2). Having regard to the judgment of French CJ and Brennan J in Barclay (at [44]), that conclusion must follow because of the statutory expression "because" in s 210(1) (see, also, the judgment of Gummow and Hayne JJ at [101]) and the nature of the statutory presumption in s 210(2). As their Honours observed: The imposition of the statutory presumption in s 361 and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains '[why was the adverse action taken?'."
9. The approach taken by the majority of the Full Federal Court in Dawson was nothing more than an application of the principles in Barclay. We agree with the Full Bench in Paula Lee and Ausgrid that the principles in Barclay are instructive for the purposes of determining whether the reverse onus has been met in the context of s 213 applications with the central factual matter for determination being "why was the adverse action taken?". Further, the direct evidence of the decision-maker as to the state or mind, intent or purpose, will bear upon that question. Barclay made clear that the reasons for detrimental action do not need to be entirely dissociated from the employee's union position or activities: see French CJ and Crennan J at [62]. Further, in CFMEU v BHP Coal Pty Ltd (2014) 253 CLR 243 the majority of the High Court found that there was no requirement to examine whether the adverse action was connected with the protected matter, namely within that context, the taking of industrial action: see French CJ and Keifel J at [15]-[19]. As was stated by Gageler J (as the Chief Justice then was) [92]: "The protection afforded by s 346(b) is not protection against adverse action being taken by reason of engaging in an act or omission that has the character of a protected industrial activity. It is protection against adverse action being taken by reason of that act or omission having the character of a protected industrial activity."
10. Beyond submitting that Dawson was determined after Paula Lee and Ausgrid and stating that its position was that s 210 operates differently from the adverse action provisions of the federal legislation, the PSA did not provide any arguments to explain why or how the Commission's approach should differ. The PSA's suggested interpretation is unsupported by caselaw and ignores the word "because" in s 210(1). The Commissioner did not err in her application of the legal principles.
11. It follows that we have decided to refuse leave to appeal in respect of the Leave to Appeal ground 5.

Did the Commissioner err is failing to consider the tension between s 210 of the Act and reg 76 of the Police Regulations?

1. The PSA stated in its written submissions in support of Leave to Appeal, "..the appeal challenges failures by the Commission to determine the effect of s 210, the Award and Clause 76 of the Police Regulations where such failures give rise to appealable error and materially affected the wrongful dismissal of the victimisation application." This was not a Leave to Appeal ground and the PSA did not otherwise elaborate on why this point, articulated in Appeal ground 3, warranted the Full Bench granting leave. We have none the less considered whether the arguments raised by the PSA in Appeal ground 3 warrant the granting of leave to appeal.
2. Appeal ground 3 is in the following terms: "Further and/or in the alternative to (1) and (2) the Commission erred at law in considering or failing to consider, the tension between s 210 of [the Act] and Clause 76 of [the Regulations]."
3. Regulation 76 of the Police Regulations provides that members and students of the NSW Police Force must treat all official information as strictly confidential and cannot divulge it without proper authority. There are some exceptions including in emergency situations, and disclosures to registered health practitioners for medical or psychological care: see [5] above.
4. The PSA argued below that Mr Saraceno had implied authority to provide the information he did to the PSA. Commissioner McDonald rejected this aspect of the PSA's case. The Commissioner stated at [185] of the Decision: "…the PSA did not clearly articulate the factual and legal basis for its submission that Mr Saraceno had implied authority to provide to the PSA the information referred to in the Annexures to the Allegation Letters. As I understand the submission it is said that the implied authority arises, from the protections afforded in s 210 of the IR Act, which override the terms of reg 76 of the Police Regulation."
5. The Commissioner extracted the PSA's written submissions on this issue before stating at [186] of the Decision: "The PSA referred to no authority to support its submission that s 210 of the IR Act entitles union members or employees generally, to share information that comes to their knowledge in the performance of their duties with a union, in order to obtain advice in respect of a claim or otherwise advance proceedings relating to an industrial matter or that reg 76 of the Police Regulation does not apply in those circumstances. That fact, alone or in combination with the fact that some of the material forwarded by Mr Saraceno, notably the Active Armed Offender Response Guidelines and a document ostensibly containing legal advice (which I discuss below), was not material in the nature of a 'pay slip', leads me to reject the PSA's submission that the Respondent's interpretation and application of reg 76 to Mr Saraceno's communication of information 'is inherently unreasonable and unavailable'."
6. On appeal the PSA submitted that it relied upon s 210 of the Act and the Award, as the source of authority for Mr Saraceno to engage in union-related activities as delegate, including sending emails from this work address. It was argued that the fact that no authorities were relied upon was not a sufficient basis to dismiss the submission and that "the Commission's opinion that two of those emails fell outside of any such authority does not amount to a finding, one way or another, in relation to the asserted source of the authority."
7. The Commissioner considered the submissions made by the PSA with respect to effect of s 210 of the Act and reg 76 in the Decision. She determined, correctly in our view, that the Commission was not required to resolve the interpretation question raised by the PSA to the effect that Mr Sareceno had the right to communicate as he did with the PSA. Indeed, the Commissioner expressly left open the prospect that he did have such a right. The Commissioner determined that the question was only relevant to the extent that it materially impacted on the plausibility of the explanation of the decision-makers for their actions, namely that they were motivated by the belief that Mr Saraceno was not entitled to provide the relevant information as he did, rather than because he was participating in the Award proceedings. Without finally resolving the question, the Commissioner found that the witnesses' belief that Ms Saraceno was not entitled to provide the information was not "inherently unreasonable and unavailable". We can see no error in this finding and the Commissioner's approach. We agree the Commissioner did not need to resolve the PSA's argument of a "tension between s 210 of [the Act] and Clause 76 of [the Regulations]."

Will the appeal have wider implications?

1. It follows from the above analysis in respect of the Leave to appeal grounds that the PSA has not established that the appeal would have wide ranging implications for all unions and their delegates and members conducting litigation. We do not accept the premise of Leave to appeal ground 1.

The Police Association's submission on leave to appeal

1. The Police Association was not granted leave to intervene in respect of the question of leave to appeal. However, in its submissions it argued that the fact the Full Bench granted it leave to intervene supports the leave to appeal application. We do not accept this submission. The Police Association was unable to articulate the arguments it intended to rely upon at the hearing of its notice of motion, nor when the appeal was heard. The Commission allowed the Police Association to intervene on the basis that the Full Bench was satisfied that Police Association "may" have a sufficient interest in the proceedings to warrant this in respect to Appeal grounds 3 and 4 only. In any event and for completeness, we have considered the submission of the Police Association, and are not persuaded that it supports the granting of leave to appeal.

Conclusion with respect to Leave to Appeal in the Victimisation appeal

1. We refuse the PSA's application for leave to appeal in the Victimisation appeal matter for the reasons we have set out above.

Leave to appeal - Industrial dispute appeal

1. The PSA contended that leave to appeal should be granted in the industrial dispute matter for six reasons contained in the Application for Leave to Appeal and Appeal as set out above at [21] (noting that the first ground does not provide a reason per se). Broadly, these grounds relate to: 1. the decision of the Commissioner that the relief sought in respect of reg 76 of the Police Regulations was declaratory in nature and beyond power (see below at 80) (Leave to appeal ground 3); 2. the Commissioner's decision with respect to whether the PSA had established LPP in respect of particular documents (Appeal ground 2); 3. the Commissioner's decision that the industrial dispute lacked a collective element and relevance of this to the exercise of discretion in declining to grant the relief sought (Appeal ground 2).
2. The PSA argued that the decision has potential far reaching consequences for union delegates, NSW Police employees and parties to other disputes and legal proceedings (Leave to Appeal grounds 4-6).

The decision that relief sought was declaratory in nature and failure to consider whether reg 76 precluded Mr Saraceno from providing confidential information to the PSA

1. The PSA sought leave to appeal on the basis that; 1. The appeal raises important issues in relation to the application of s 175 of the Act, in particular involving the distinction between an interpretation and a declaration (Leave to appeal ground 3); and 2. The decision has potential far reaching consequences for union delegates and other employees of NSW Police to whom reg 76 applies (Leave to appeal ground 4).
2. These Leave to appeal grounds connected with Appeal ground 1: 1. To the extent the Commission concluded that the application to interpret reg 76 under s.175 of the Act amounted to an application for a declaration, it was wrong to do so.
3. It is necessary to consider the relief sought by the PSA in the industrial dispute proceedings below. For convenience, we set this out again below: 1. a recommendation that: 1. the Respondent cease accessing emails from PSA delegates to PSA solicitors and administrative support staff where those emails are marked "Sensitive-Legal" or are otherwise subject to legal professional privilege; and 2. the parties consult to devise a document that covers procedures for PSA delegates using NSW Police Force email to communicate with the PSA regarding legal proceedings and workplace disputes, and 1. a determination, pursuant to s 175 of the Act, that reg 76 of the Police Regulation 2015 does not apply to PSA delegates who are exercising their rights as delegates to use NSW Police Force email to communicate with the PSA and/or its solicitors regarding union matters or legal proceedings.
4. We note the application for leave to appeal relates in part to the decision of Commissioner McDonald declining to make recommendations. In Secretary of the Ministry of Health v Australian Paramedics Association (NSW) [2022] NSWSC 1431 (Health v APA) at [55]-[56], Walton J observed in respect of the s 136(1): "55. The power to make a recommendation is a non-coercive power. In The Local Government Engineers Association of New South Wales v MidCoast Council [2021] NSWIRComm 1081 ("LGEANSW v MidCoast Council"), Commissioner Muir said at [73]: 82 Unlike a court, the Commission has a power of recommendation. Clearly, one reason that power exists is so that in appropriate cases the Commission may make a suggestion, using the Commission's moral authority. It might be thought that the power to make a suggestion was obvious enough to be available to the Commission without being express, but the legislature expressly gave it. 56. A recommendation is not legally binding or enforceable. The purpose of this power is so that the Commission can give non-binding guidance to the parties or encourage a course which does not bind the parties. As Commissioner Muir described it, it is a 'suggestion'. A failure to comply with a recommendation can not result in any penalty, does not amount to contempt and has no legal consequences."
5. In our view, there is a real question as to the utility of an appeal from a decision not to make recommendations, where these lack legal consequences, and do not have a binding effect and the matter does not otherwise raise important issues of law or principle: see [189] of Health v APA. For reasons that we will elucidate upon shortly, we do not consider any of the other matters raised by the PSA in support of its application for leave of to appeal raise such issues.
6. At [95] of the Decision, Commissioner McDonald identified the issues for determination. In respect of the dispute proceedings, she identified the need to decide whether the Commission has power to grant the relief sought. The Commissioner found that the Commission had power to make the recommendations sought by the PSA, but not the relief sought at 80 above. The basis for this decision was set out at [24]-[26]: "24. As for the making of a determination pursuant to s 175, section 175 provides: 175 Powers of interpretation The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument). 25. As I observed in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch v Primo Foods Pty Ltd; Primo Foods Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, NSW South Wales Branch [2023] NSWIRComm 1076 at [164], while s 175 of the IR Act provides the Commission with the power to determine any question concerning the application of any relevant law, for the purpose of exercising its functions in connection with a matter before it, it does not permit the making of a declaration. As Commissioner Sloan explained in Fire Brigade Employees' Union of New South Wales v Commissioner of Fire and Rescue New South Wales (PAD Program) [2021] NSWIRComm 1041 at [14] - [15], albeit in the context of a question as to the interpretation of a clause in an award: The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument): s 175 of the Act. The Awards are industrial instruments: s 8 of the Act. The powers conferred on the Commission by s 175 are "for the purpose of [the Commission] exercising its functions". The powers do not stand alone, permitting applications for declaratory relief simpliciter. The power to provide an interpretation of a clause in an award must be associated with the exercise of the Commission's other powers under the Act: Health Services Union New South Wales and Ambulance Service of New South Wales [2017] NSWIRComm 1057 at [10] (Seymour C), citing Australian Rail, Tram and Bus Industry Union, New South Wales and State Transit Authority [2013] NSWIRComm 102 at [67] and Health Services Union v Director-General, Department of Health (NSW) (2010) 193 IR 359; [2010] NSWIRComm 42 at [57]- [58]. 26. The Commission is able to determine a question concerning the interpretation, application or operation of a relevant law as part of the process of determining whether to make a recommendation pursuant to s 136(1)(a) (or whether to exercise some other function), but it must be careful not to make a determination which is tantamount to a declaration. As his Honour Walton J explained in Secretary of the Ministry of Health v Australian Paramedics Association (NSW) [2022] NSWSC 1431; 320 IR 198 at [191] - [193]: 191. Expressing a view on the interpretation of the law is an act that tribunals and administrative bodies are called upon to do in the ordinary exercise of their functions. Sometimes an interpretation of the law will result in the making of an order or determination that affects legal rights. Other times, as in the case of a recommendation in arbitration, it does not. The fact that the reasoning process in reaching the latter may involve the interpretation of a statute does not have a sufficient legal consequence to give rise to an order in the nature of certiorari. 192. The former Industrial Court previously had a power to make a declaration such that it could declare the law: IR Act s 154 (which was repealed by the Industrial Relations Amendment (Industrial Court) Act 2016 (NSW)). No such power currently exists on the Commission. As mentioned, an interpretation of the law by the Commission does not have the effect of a declaration. 193. To the extent that the Secretary is suggesting that the Commission in a future proceeding is bound by the interpretation set out in the Primary Decision, this is mistaken. An interpretation of the law by a single Commissioner in arbitration does not have the force and effect of a binding precedent on the Commission in the future. There is no principle of ratio decidendi that operates and, even if it did, the principle could not operate with respect to a recommendation. The statements made by the Commissioner do not amount more than him exposing his thought processes in recommending a particular course."
7. Despite submitting that the "legal question of whether the determination amounts to [a] declaration (and therefore outside the Commission's jurisdiction) is complex", the PSA did not squarely address this question in its appeal submissions. Commissioner McDonald was clearly engaged with a consideration of the nature of the relief sought by the PSA and whether she had the power to make it if she was inclined to do so. In our view, the order sought was declaratory in nature. The PSA's submissions do not engage with the caselaw referred to in the Decision that supports that conclusion, nor have they presented any argument that would tell against the Commissioner's decision about the nature of the relief sought in the appeal.
8. The PSA's submissions in support of the relevant points of appeal were to a different point - that the Commission erred in failing to engage in the interpretative process sought by the PSA in the context of dealing with the industrial dispute and deciding whether to make the recommendations sought. Although not directly aligned to Leave to Appeal ground 3 and Appeal ground 1, the PSA submitted that (PSA appeal submission at [10]): "Had the Commission undertaken the interpretation of Clause 76 of the Regulations (and s.210 of the Act) as sought by the appellant, and had it agreed a. That union delegates are authorised to disclose confidential information; and/or b. That the appellant is not a "third party" for the purposes of Clause 76 of the Regulations, this would have narrowed the parameters of the dispute and allowed the parties to give further consideration to developing a scheme for communications between delegates and the appellant for the future, so as to avoid further disputation."
9. The PSA submitted that the Commission's "refusal" to undertake the statutory interpretation of s 175 of the Act represented a failure by the Commission to exercise its jurisdiction. It was further put that a finding that the union delegate is able to share confidential information would have provided a sound basis for the making of recommendations.
10. We do not accept the PSA's submissions that the Commissioner erred in failing to engage with the interpretation issue it presented. The interpretation of reg 76 was not relevant to the recommendations sought by the PSA.
11. In respect of the first recommendation sought (that the respondent cease accessing emails from the PSA delegates to PSA solicitors and administrative support staff where those emails are marked "Sensitive-Legal" or are otherwise subject to legal professional privilege), the Commissioner accepted the unchallenged evidence of Chief Inspector Newton and Superintendent Driver that there are only limited circumstances in which the NSW Police Force monitors the email accounts of its workforce, consistent with the Email Guidelines. This was not a finding of fact challenged by the PSA in the Appeal. Commissioner McDonald concluded that this alone was a sufficient basis to determine that there was no factual basis to warrant the making of the recommendation sought. Further the Commissioner found that the communications sent using the NSW Police Force email system were not privileged communications, a finding we consider was open to the Commissioner for the reasons below.
12. In respect of the second recommendation sought (the parties consult to devise a document that covers procedures for PSA delegates using NSW Police Force email to communicate with the PSA regarding legal proceedings and workplace disputes), Commissioner McDonald found that although the fact of Mr Saraceno's email being audited and the existence of the Email Guidelines provided part of a the factual foundation for the Commission to make the recommendation, the existence of the PSA's Delegates' Handbook recommending confidential information not be communicated through work email obviated the need for any other kind of procedure: [235] of Decision.
13. This was a sufficient basis upon which the Commissioner may have declined to make the recommendations sought. It was not necessary for the Commissioner to interpret reg 76 to reach these conclusions. This is dipositive of the PSA's Leave to Appeal ground 3 and Appeal ground 1.
14. However, we note the Commissioner recognised that the recommendations sought by the PSA were not directed at resolving what she identified as the PSA's "larger concern" identified in the dispute, namely, confidential information being provided by delegates to the PSA. However, the Commissioner explained in the Decision, why, as a matter of discretion, she would be disinclined to make such a recommendation. In our view, the PSA is unable to complain about the Commission's decision to not make a recommendation they did not seek.
15. In any event the Commissioner proactively determined that she would not make a recommendation aimed at the "larger concern" for reasons including: 1. the lack of an established collective element to the dispute; 2. the lack of evidence of any approach to the Police Commissioner seeking permission to disclose the confidential information by Mr Saraceno; and 3. there being no evidence the Police Commissioner was unreasonably impeding communications between delegates and the PSA.
16. The PSA has not established any error in this process of reasoning, including in respect of the Commissioner's consideration of the collective element, which we consider shortly.
17. We refuse leave to appeal on the basis that Commissioner McDonald failed to consider whether reg 76 precluded Mr Saraceno from providing confidential information to the PSA for these reasons.

Whether there was a collective element in the industrial dispute and the relevance of this finding

1. The appellant sought leave to appeal on the basis that the Commission erred in finding that the dispute did not have a collective element, "notwithstanding that it generally affected the abilities of union delegates employed by the Commissioner of Police, and the dispute arose from a background of award disputation": [16] of PSA's leave submissions.
2. Appeal grounds 2 and 3 related to the Commission's findings in respect of the collective nature of the industrial dispute.
3. Appeal ground 2 argued that the Commission erred in determining that the absence of a collective element was material to the exercise of the Commission's jurisdiction below.
4. We agree with the Police Commissioner's submissions that appeal ground 2 misconceives the Decision. The Commissioner found at [237]: "...a collective element is not required to make a recommendation pursuant to s 136(1)(a). However, the lack of a collective element is a factor that the Commission may take into account when determining whether to make a recommendation."
5. The Commissioner did not find that a lack of a collective element was material. The Commissioner stated the principle accurately and in accordance with recent authority: Police Association of New South Wales v Commissioner of Police, NSW Police Force [2023] NSWIRComm 1095. Accordingly, appeal ground 2 is without foundation.
6. Appeal ground 3 otherwise argues that the Commissioner erred in finding that the dispute did not have a collective element. The Commissioner decided that the relief sought had a collective element, but the dispute did not, observing that the PSA did not lead evidence that ([238]-[239]): 1. the preparation of the Award proceedings was being impeded; 2. NSWPF accessing emails was causing issues beyond the circumstances of Mr Saraceno; nor 3. there is a broader issue regarding the provision of confidential information to the PSA.
7. We consider this finding was open to the Commission and in any case, we would not be inclined to grant leave to appeal given that (as acknowledged in the PSA's submissions), the Commissioner provided other reasons why she would be disinclined to grant the relief sought: [15] of PSA submissions in the industrial dispute appeal.

The Commissioner's findings in respect of the claim for Legal Professional Privilege

1. We are similarly unpersuaded by the PSA that leave to appeal should be granted in respect of the Commissioner's findings in respect of the claim for LPP.
2. Leave to appeal ground 2 provides that, "The decision involves important matters relating to the meaning of 'legally professional privileged' in the context of communications from a union delegate to union lawyers." Appeal ground 5 provided that the Commissioner erred in finding that emails sent by a union delegate to the union lawyers acting for the union in the Award proceedings were not subject to LPP at large, and specifically by finding that the emails were not confidential. The PSA argued that the finding of the Commissioner that communications from the NSW Police Force email system could not be confidential by reason of the Police Commissioner's Email Guidelines was wrong: [24]-[25] of PSA submission in the industrial dispute appeal.
3. In our view, it is arguable that LPP may attached to some email communications, even though the owner of the email system has a right to access those materials. However, it was open to the Commissioner to make the factual finding that the relevant communications were not confidential: see [137]-[139]. We are fortified in this view by the fact that the PSA did not lead any direct evidence in respect of the confidential nature of the communications, and instead relied upon inferences to be drawn from the nature of the materials. Given the absence of this evidence, the content of the Police Commissioner's Email Guidelines and the Delegates' Handbook, it was open to the Commissioner to find that the PSA had not established confidentiality in the emails. In any event, there were communications in evidence relied upon by the decision-makers in forming the relevant belief of misconduct that could not have been the subject of a claim for LLP. The PSA has not articulated the utility of granting leave in respect of appeal ground 5 in these circumstances. We would not grant leave to appeal in respect of this issue for these reasons.

Will the appeal have wider implications?

1. It follows from our consideration of Leave to appeal grounds 2 and 3 that the industrial dispute appeal will not have wider implications as submitted by the PSA in Leave to appeal grounds 4, 5 and 6.

Conclusion in respect to Leave to Appeal in respect of the Industrial Dispute proceedings

1. We refuse the PSA's application for leave to appeal in respect of the industrial dispute appeal for the reasons we have set out above.

Orders

1. The Full Bench orders: 1. Leave to appeal in 2024/56115 is refused. 2. Leave to appeal in 2024/56082 is refused.

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: 29 October 2024