Grounds 1 and 4(a): Whether the primary judge erred in finding that the Commissioner did not "treat" the appellant in a particular way or "require" the appellant to comply with a requirement or condition
120 Ground 1 of the Notice of Appeal alleges that the primary judge erred in finding that there was no decision or positive action taken by the Commissioner to revoke the appellant's LSC appointment capable of constituting direct discrimination for the purposes of s 5(1) of the DD Act.
121 Ground 4(a) of the Notice of Appeal alleges that the primary judge erred in finding that the appellant was not subject to indirect discrimination for the purposes of s 6(1) of the DD Act because the Commissioner had not imposed any requirement which the appellant was to comply with.
122 It will be recalled that the fundamental reason why the primary judge rejected the appellant's claim of unlawful discrimination was her Honour's opinion that the LSC Guidelines compelled the revocation, so that no positive decision was made by the Commissioner.
123 The appellant's principal submission is that the primary judge erred in finding that the LSC Guidelines compelled the revocation of the appellant's LSC appointment when the preconditions were met. The appellant submits, alternatively, that the preconditions under cl 1.42 of the LSC Guidelines were not met because, first, the LSC Guidelines provide that the legitimate use of sick leave cannot provide the basis for an officer to not meet the inherent requirements of the position; and, second, the appellant had not been certified as permanently unable to return to pre-injury duties and unable to undertake the inherent requirements of the position.
124 The appellant argues that that cl 41.2 of the Award and cl 1.42 the LSC Guidelines, read together, confer a discretion on the Commissioner to revoke a LSC appointment. This is said to be demonstrated, in particular, by the phrase, "may revoke the appointment of a Leading Senior Constable at any time", in cl 41.2 of the Award, and by LSC Guidelines providing a capacity to allow an officer to retain their LSC status even where the preconditions for revocation are met.
125 The respondents submit that the primary judge correctly found that the revocation of the appellant's LSC status did not involve the Commissioner "treating" Mr Ryan in a particular way, or "requiring" the appellant to comply with a requirement or condition. They also submit that the Award is not dominant over the LSC Guidelines because the Guidelines are an agreement made under s 87 of the Police Act which has a legal status equal to the Award. They also argue that the LSC Guidelines are a "local arrangement" within cl 14 of the Award, requiring the Guidelines to be reconciled with cl 41.2 of the Award. They submit that the consequence is that the mandatory terms of cl 1.42 of the LSC Guidelines dictate the outcome.
126 It is necessary to commence by examining the significance of the primary judge's finding that the LSC Guidelines compelled revocation of the appellant's status and did not involve the Commissioner making a positive decision.
127 Section 15(2) of the DD Act provides, relevantly, that it is unlawful for an employer to "discriminate" against an employee on the ground of the employee's disability by subjecting the employee to detriment.
128 Section 5(1) of the DD Act provides that direct discrimination occurs, relevantly, where, because of the aggrieved person's disability, the discriminator "treats" the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
129 Section 6(1) provides that indirect discrimination occurs where, relevantly: (a) the discriminator "requires" the aggrieved person to comply with a requirement or condition; (b) because of a disability, the aggrieved person does not comply with the requirement or condition; and (c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.
130 It may be seen that for there to be a contravention of s 15(2) of the DD Act through direct discrimination, the employer must treat an employee less favourably than a person without the disability would be treated; and for there to be a contravention through indirect discrimination, the employer must require an employee to comply with a requirement or condition.
131 In State of New South Wales v Amery (2006) 230 CLR 174, the High Court was concerned with a claim of indirect discrimination on the ground of sex under State legislation defining indirect discrimination in a way similar to s 6(1) of the DD Act. The respondents argued that the alleged perpetrator (the Department) had imposed a requirement that casual teachers obtain appointment as permanent teachers as a condition of being able to access higher levels of pay, when women were less able to comply with that condition because of their family responsibilities. The plurality observed that the first element of establishing indirect discrimination was that the discriminator, "requires the aggrieved person to comply with a requirement or condition". Their Honours emphasised at [65] the importance of identifying the "requirement" said to have been imposed. The plurality found at [78] that the legislation governing the appointment of teachers required their appointment as either a casual teacher or a permanent teacher; and that this required attention to be given to the terms and conditions of the respondents' employment, not as teachers generally, but as casual teachers. The plurality held, relevantly for the present case:
81 The distinction between permanent and non-permanent teachers in the Education Teaching Service is a feature of the structure of the workforce employed in that Service. That structure was not adopted by decision or practice of the Department. It was imposed by the Teaching Services Act. The pay scales set by the Award and the practice, adopted by the Department, of not extending to its supply casual teaching staff over-award payments were an incident of the management of that structure.
82 Not every such incident may be described as being a requirement or condition, compliance with which is required either in the terms on which employment in the Education Teaching Service is offered or in the terms or conditions of employment afforded by the Department…
132 In this passage, the plurality distinguished between a requirement imposed by an employer and a requirement imposed by legislation and merely administered by an employer. The plurality (with whom Callinan J agreed at [205]) found that the alleged requirement was not one imposed by the Department.
133 The primary judge applied a distinction of that kind to the present case. Her Honour found:
152 If the preconditions in cl 1.42 exist then the result is that the LSC status revocation is compelled by the Guidelines. The Commander conducts an assessment of the facts to determine if, objectively, the facts establish that the preconditions exist such that the LSC must be revoked. There is no decision made. Properly understood, the Guidelines compel that result…
…
160 Properly understood the revocation clause [in paragraph 1.42 of the LSC Guidelines] does not require any decision to be made. Rather it requires an objective assessment of the facts to determine if the preconditions exist. The result thereafter is compelled. If the preconditions exist there is nothing in the clause which requires the Commander to consider whether there is a basis to request the LSC status continue. To the contrary, the clause states that the LSC status will be revoked.
134 The primary judge must be understood to have reasoned that the revocation of the appellant's LSC status did not involve the Commissioner "requiring" that the appellant comply with a requirement or condition for the purposes of considering indirect discrimination under s 6(1) of the DD Act.
135 The primary judge also appears to have extrapolated the reasoning in Amery to the meaning of direct discrimination under s 5(1). Her Honour must be understood to have reasoned in the following way:
(1) The Commissioner was bound by the requirement of s 12 of the IR Act to comply with the terms of the Award.
(2) Clause 41.2 of the Award required the Commissioner to comply with the LSC Guidelines.
(3) Clause 1.42 of the LSC Guidelines required the Commissioner (through his delegate, a Commander) to revoke the appellant's LSC appointment when the preconditions set out in that clause were satisfied.
(4) As the preconditions were satisfied, the Commander was compelled to revoke the appellant's LSC appointment.
(5) As the result was effectively compelled by law, the Commissioner cannot be taken to have treated the appellant less favourably than a person without the disability would have been treated in circumstances that were not materially different (the relevant circumstances including a requirement to act in accordance with law).
136 The appellant has not disputed the correctness of the primary judge's process of reasoning, but argues that her Honour's findings upon the second and third propositions were wrong.
137 As to the third proposition, the primary judge acknowledged that cl 1.42 of the LSC Guidelines provides that, "if a Commander is seeking for an officer to retain their status where the preconditions are satisfied, this must be forwarded to the Commander, Human Resources for consideration". Her Honour recognised the possibility that, despite the preconditions existing, the officer may retain their LSC status. However, her Honour considered that this, "does not create a discretion, properly understood, to be exercised by the Commander as to whether to revoke the LSC status, but rather it raises an issue for the Commander of Human Services to consider whether there is a proper basis in the circumstances not to revoke the LSC status". Her Honour did not go on to consider whether the Commander of Human Services has a discretion to not revoke a LSC appointment.
138 As to the second proposition, the primary judge referred to cl 41.2 of the Award. That clause is in the following terms:
The Commissioner may revoke the appointment of a Leading Senior Constable at any time. The circumstances under which such an appointment is revoked shall be subject to provisions duly agreed between the Commissioner and the Association…
139 It is implicit that her Honour proceeded on the basis that the Commissioner's discretion under the first sentence of cl 41.2 to revoke the LSC appointment was qualified and limited by the second sentence and by the terms of the LSC Guidelines agreed between the Commissioner and the Association.
140 Although the appellant has not sought to distinguish Amery, it is arguable that the present case is distinguishable. In Amery, the plurality observed at [81] that the relevant scheme, "was not adopted by decision or practice" of the employer, but was imposed by legislation. Similarly, Gleeson CJ observed at [6] that the, "scheme was outside the control of any of the parties…". In this case, the LSC Guidelines were made by the Commissioner by agreement with the Association, so that their content was within the Commissioner's control. The primary judge found that the Commissioner was bound by the LSC Guidelines to revoke a LSC appointment whenever the preconditions were met, but it seems an odd result that the Commissioner could, by choosing to bind himself in that way, escape a possible finding of unlawful discrimination. That is especially so in light of cl 5.1 of the Award which states that it is the parties' intention to eliminate discrimination in the workplace. Nevertheless, no such argument was raised, and the appeal cannot be considered on that basis.
141 As has been mentioned, the appellant's principal submission was that the Award and the LSC Guidelines, read together, confer a discretion on the Commissioner to revoke a LSC appointment.
142 The appellant's submission makes it necessary to consider the nature of awards under the IR Act. In Downe v Sydney West Area Health Service (No 2) (2008) 71 NSWLR 633, Rothman J observed at [252]:
…An award, as is probably common knowledge, is an instrument made by the Commission which instrument is given statutory force under the Act and sets conditions of employment. It does not require (although as a matter of practice it may involve) an understanding or agreement of the parties or a meeting of the minds of those persons bound by it. Indeed given that all awards under the Act are "common rule" in effect, it would be impossible (except in very peculiar awards) to have an understanding between all of the participants bound by the award (see s 12 of the Industrial Relations Act).
143 Under s 3(e), the objects of the IR Act include facilitating appropriate regulation of employment through awards. Section 10 provides that the Commission may make an award setting fair and reasonable conditions of employment for employees. Section 12(1) provides that an award is binding on all employees and employers to which it relates, whether or not they were a party to the making of the award. Section 12(3) provides that an award is binding on all industrial organisations that were parties to the making of the award
144 Section 406(1) of the IR Act provides that the conditions of employment set by an industrial instrument (which under s 8 includes awards) are the minimum entitlements of employees. Under s 357, a person who has contravened an industrial instrument may be ordered to pay a civil penalty. Section 359 provides that an injunction may be granted to restrain a person from contravening an industrial instrument.
145 It is not in dispute that the Commissioner and the Association were parties to, and were bound by, the Award.
146 In City of Wanneroo v Australian Municipal, Administrative, Clerical & Services Union [2006] FCA 813; (2006) 153 IR 426, French J observed at [51] that, "[a]n award made under the Act is not a law but, when made, its provisions are given the force of a law of the Commonwealth…". In Byrne v Australian Airlines Limited (1995) 185 CLR 410, McHugh and Gummow JJ remarked at 445, "the Award could not answer the description of a law of the Commonwealth", but, "the Award is made part of the law, not by its own force but by force of its adoption by the statute…".
147 It is necessary to construe cl 41.2 of the Award. In City of Wanneroo, French J observed that the principles of construction of awards include the following:
53 The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to '… the entire document of which it is a part or to other documents with which there is an association'. It may also include '… ideas that gave rise to an expression in a document from which it has been taken'.
…
57 It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned. It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies.
(Citations omitted; and see Ridd v James Cook University [2021] HCA 32; 394 ALR 12 at [17].)
148 Clause 41.2 of the Award has been set out above at [51]. The first sentence provides that, "The Commissioner may revoke the appointment of a Leading Senior Constable at any time". The Interpretation Act 1987 (NSW) (the Interpretation Act) applies to the interpretation of an award: State of New South Wales v Stockwell [2017] NSWCA 30 at [69]. Section 9(1) of the Interpretation Act provides that the word "may" in any Act or instrument, if used to confer a power, indicates that, "the power may be exercised or not, at discretion". The phrase "may revoke" in cl 41.2 is, on its face, intended to provide the Commissioner with a broad discretionary power to revoke. That is reinforced by the words "at any time", which convey the notion of a discretion that may be exercised as and when required.
149 However, the second sentence of cl 41.2, "[t]he circumstances under which such an appointment is revoked shall be subject to provisions duly agreed between the Commissioner and the Association", seems inconsistent with such a discretion. The phrase "is revoked" suggests the agreement will set out the circumstances where a LSC appointment must be revoked.
150 It is necessary to proceed upon a prima facie assumption that the first and second sentences of cl 41.2 of the Award are intended to give effect to a harmonious goal, and they should be reconciled, if possible, to allow their purpose to be achieved: cf Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[70].
151 An appropriate starting point is to observe that the first sentence clearly and unambiguously confers a broad discretion on the Commissioner to revoke a LSC appointment. That discretion necessarily encompasses a discretion to decline to revoke an appointment.
152 It may be observed that the phrase "is revoked" in the second sentence is ungrammatical, and therefore unclear, since it uses the present tense to refer to an event anticipated to happen in the future. Although the phrase may carry the suggestion that it refers to circumstances in which a LSC appointment must be revoked, it does not do so directly, literally and unmistakeably. To impose such an absolute requirement, it could instead have been expressed as, "is to be", or "must be". In City of Wanneroo, French J observed at [57] that, "courts and tribunals will not make too much of infelicitous expression in the drafting of an award". However, it cannot be ignored that the drafting of the second sentence lacks the precision and clarity of the first. That makes it more likely that the first sentence means what it says, namely that the Commissioner, "may revoke the appointment of a Leading Senior Constable at any time", and that the second sentence was intended to be consistent with the first.
153 That the intention of the Industrial Relations Commission in making cl 41.2 of the Award was to leave the Commissioner with a discretion to revoke a LSC appointment seems consistent with industrial reality. It is notorious that the circumstances that can arise in employment relationships range broadly and can be quite unpredictable. It seems unlikely that the Industrial Relations Commission can have intended that the agreement between the Commissioner and the Association would require that a LSC appointment must be revoked in agreed circumstances, and that the Commissioner should have no discretion to decline to revoke if that was considered appropriate. That would be seemingly inconsistent with the notions of fairness and reasonableness in an award required under s 12 of the IR Act.
154 Further, under the respondents' construction, cl 41.2 of the Award would confine the agreement to be made between the Commissioner and the Association to circumstances where a LSC appointment must be revoked. That would be an unusual concept in administrative decision-making. It seems more likely that the Commission intended a broader agreement to operate as a guideline concerning circumstances where the Commissioner would consider revocation. An agreement of that kind would promote clarity for employees and the Commissioner.
155 The second sentence of cl 41.2 of the Award should be construed such that the agreement between the Commissioner and the Association will not fetter the discretion conferred under the first sentence.
156 The parties agree that the LSC Guidelines are, "provisions duly agreed between the Commissioner and the Association for the purposes of clause 41.2 of the Award".
157 At this stage, it should be mentioned that the Macquarie Dictionary defines "duly" to mean "properly", or, "in due season". The first meaning suggests that in cl 41.2, the "provisions duly agreed" are those already agreed; while the second meaning suggests that they are to be agreed after the Award is made. The Commissioner and the Association seem to have interpreted the clause the second way, since they proceeded to agree upon the LSC Guidelines. That may raise another question, namely whether the clause involves an impermissible delegation of the Commission's power to make awards: cf Public Employment Industrial Relations Authority v Health and Research Employees' Association (NSW) (1994) 54 IR 162 at 183-184; Public Service Association of NSW v Secretary of the Treasury (2014) 87 NSWLR 41 at 91-92. However, that question was not raised by either party and it is unnecessary to give it further consideration.
158 As the Commissioner and the Association are bound by the Award, they must be imputed with an intention to make an agreement consistent with cl 41.2 of the Award. The LSC Guidelines should be construed, consistently with cl 41.2, as intended to provide guidelines concerning circumstances in which the Commissioner will consider revocation, and criteria and a process for doing so. The LSC Guidelines cannot bind the Commissioner to revoke a LSC appointment in particular circumstances.
159 However, the respondents submit that the LSC Guidelines are also a binding agreement made pursuant to s 87 of the Police Act and are to be given legal effect as an "industrial instrument", which has equivalent status to an Award. They submit that, as such, the LSC Guidelines are not subordinate to cl 41.2 of the Award, and must be given equal force and read harmoniously with the Award.
160 The term "industrial instrument" is used in s 8 of the IR Act to mean, "an award, an enterprise agreement, a public sector industrial agreement, a former industrial agreement, a contract determination or a contract agreement". The Dictionary to the IR Act defines a "public sector industrial agreement" to include an agreement under s 87 of the Police Act.
161 A public sector industrial agreement, including an agreement under s 87 of the Police Act, is not required to be approved by, or registered with, the Industrial Relations Commission. Such an agreement, like an award, is enforceable by the imposition of penalties and injunctive relief.
162 It is necessary to consider whether the LSC Guidelines are an agreement made under s 87 of the Police Act. That section provides:
87 Commissioner may enter into agreements
(1) The Commissioner may enter into an agreement with any association or organisation representing a group or class of non-executive officers with respect to industrial matters.
(2) The Commissioner is not authorised to enter into such an agreement with respect to a matter if the Industrial Relations Commission does not have jurisdiction to make an award or order with respect to that matter because of section 405 of the Industrial Relations Act 1996.
(3) An agreement under this section binds all non-executive officers in the class or group affected by the agreement, and no such officer (whether a member of the association or organisation with which the agreement was entered into or not) has any right of appeal against the terms of the agreement.
163 The term "industrial matters" in s 87(1) of the Police Act is apparently intended to take its meaning from s 6 of the IR Act, which defines "industrial matters" to mean, "matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties obligations of employers or employees in any industry".
164 The respondents submit that the original agreement between the Commissioner and the Association made on 17 September 2001 was an agreement under the former s 86 of the Police Act. Section 86 was renumbered to become s 87. The respondents submit that the LSC Guidelines were made under s 87. The appellant submits that the LSC Guidelines are not an agreement under s 87.
165 On 17 September 2001, a written agreement entitled, "Police Service of New South Wales Leading Senior Constables Agreement", was made between the then Commissioner and the Association (the 2001 Guidelines). The 2001 Guidelines dealt with salaries, appointment of officers as LSCs and revocation of such appointments, and other conditions of employment. They were expressly stated to be made under s 86 of the Police Act.
166 It appears that a new version of the guidelines was agreed in 2008 (the 2008 Guidelines). The 2008 Guidelines do not state that they were made under s 87 of the Police Act.
167 There is before the Court an internal memorandum (undated, but apparently written in about August 2013) to the Commander, Human Resources of the NSW Police Force noting that approval had been given for a review of the "the LSC Guidelines", presumably the 2008 Guidelines. The memorandum attached draft guidelines, which were described as having been prepared for discussion and consultation with the Association as required under cl 41 of the Award.
168 There is also an undated letter from an Assistant Commissioner to the Association referring to recent discussions and enclosing a final draft of the reviewed LSC Guidelines for consideration of the Association. On 11 April 2014, the Association replied advising that, "the Executive of the Police Association of NSW endorses the Leading Senior Constable Guidelines - Part A - dated 4 March 2014". Clause 41.2 was contained in Part A.
169 The agreed LSC Guidelines have effect from 22 July 2014. They deal with a range of matters including eligibility for appointment as a LSC, selection criteria, revocation of appointments, leave and other matters.
170 The 2001 Guidelines were stated to have been agreed under s 86 of the Police Act. They were replaced by the 2008 Guidelines, but the evidence does not reveal whether the 2008 Guidelines were made also under s 87 (as renumbered). The LSC Guidelines then replaced the 2008 Guidelines.
171 The appellant points out that the LSC Guidelines are not styled as an agreement under s 87 of the Police Act, in contrast with the 2001 Guidelines, and there is no direct evidence that the Commissioner endorsed the LSC Guidelines.
172 The appellant also submits that the content of the LSC Guidelines does not support an inference that they were intended to constitute a binding agreement under s 87 of the Police Act. They are described as providing, "information on the recruitment, selection, ongoing management and revocation of Leading Senior Constables", and, consistently with their title, are guidelines. It is submitted that much of the LSC Guidelines deals with matters of qualifications, allocation of duties, processes for appointment and the like which seem inapt for a binding instrument enforceable by imposition of penalty in the event of contravention.
173 The appellant further submits that the LSC Guidelines are inconsistent in some respect with s 405 of the IR Act, which provides that an agreement cannot make provision, "to the extent that it is inconsistent with a function under the Police Act 1990 in relation to the discipline, promotion or transfer of a police officer". The LSC Guidelines deal with promotion, discipline for misconduct or unsatisfactory performance, and transfer. That is submitted to suggest that the LSC Guidelines were not intended to be an agreement having effect under s 87 of the Police Act.
174 An agreement under s 87 of the Police Act is binding on all officers in the class or group affected, and contravention can be enforced by imposition of penalties or injunction. Under s 361(1) of the IR Act, an employer is required to exhibit a copy of such an agreement at the work premises. In this context, it is common ground that such an agreement is intended to be a formal written agreement.
175 However, s 87 of the Police Act does not contain any other formal requirements for an agreement between the Commissioner and the Association. Nor does the IR Act specify any formal requirements for a public sector industrial agreement. Unlike the making of awards and enterprise agreements, there is no supervision over a public sector industrial agreement by the Industrial Relations Commission, and no requirement for filing of such an agreement with the Commission.
176 The respondents submit that, provided there is a meeting of the minds between the Commissioner and the Association with respect to industrial matters, reflected in writing, there is an agreement under s 87 of the Police Act. However, as an agreement under s 87 creates binding and enforceable obligations, it seems quite unlikely that the legislative intention could be that the Commissioner and the Association might inadvertently make such an agreement. What is required is that the Commissioner and the Association must consciously and intentionally do so. Such a conscious intention could usually be expected to be reflected in an express statement that the agreement is made under s 87 of the Police Act.
177 The LSC Guidelines are not expressed to be an agreement made under s 87 of the Police Act, in contrast to the 2001 Guidelines. The Commissioner did not give or call any direct evidence that the LSC Guidelines were intended to be an agreement made under s 87. The correspondence between the NSW Police Force and the Association does not indicate that it was a s 87 agreement. The content of the LSC Guidelines is consistent with having been made for the purposes of cl 41 of the Award, but provides no clear indication that they were also intended to amount to a s 87 agreement. Some of their content is inconsistent with being such an agreement. The evidence suggests that no consideration was given to whether the agreement was to be one made under s 87 of the Police Act.
178 It cannot be inferred that the LSC Guidelines are an agreement made under s 87 of the Police Act. Therefore, it cannot be accepted that they are a public sector industrial agreement, enforceable, like an award, under the IR Act. The LSC Guidelines must be regarded as having been made only for the purpose of complying with the obligations of the Commissioner and the Association under cl 41 of the Award.
179 The respondents next submit that the LSC Guidelines are a "local arrangement" within cl 14 of the Award. That clause provides:
14.1 Local arrangements, as specified in this Award, may be negotiated between the Commissioner and the Association in respect to:
14.1.1 any organisational unit within the New South Wales Police Force or part thereof;
14.1.2 a particular group of officers; or
14.1.3 a particular duty type.
14.2 All local arrangements negotiated between the Commissioner and the Association must be contained in a formal document, such as an agreement made pursuant to s 87 of the Police Act 1990, a co-lateral agreement, a memorandum of understanding, an award, an enterprise agreement or other industrial instrument.
14.3 Local arrangements shall not result in any net disadvantage to officers in terms of their total remuneration and conditions of employment.
180 The Award contains a definition of "local arrangements" at cl 3.8 as follows:
"Local Arrangements" means an agreement reached at the sub-organisational level between the Commissioner and the Association in terms of clause 14, Local Arrangements of this Award.
181 The respondents submit that the LSC Guidelines, as local arrangements, stand beside, and are not subordinate to cl 41.2 of the Award. They submit that the LSC Guidelines and the Award should be construed so that they operate harmoniously.
182 The respondents' submission that the LSC Guidelines are local arrangements raises several complex issues concerning the industrial law of New South Wales. The use of local arrangements seems to be a common device in awards in that State with, no doubt, a lengthy history which was unexplained in the appeal. The respondents' submission that the LSC Guidelines are local arrangements was raised for the first time in the course of oral submissions, and the submission was not fully developed, even in supplementary written submissions. In circumstances where the appeal is able to be decided upon an assumption that LSC Guidelines are local arrangements, it is undesirable to determine the issue.
183 Upon an assumption that the respondents' submission that the LSC Guidelines are local arrangements is correct, it is necessary to reconcile those Guidelines with cl 41.2 of the Award. It is common ground that the LSC Guidelines are, "provisions duly agreed between the Commissioner and the Association", for the purposes of cl 41.2 of the Award. Since the Commissioner and the Association are bound under s 12 of the IR Act to comply with the Award, they must be imputed with an intention to make an agreement that was consistent with cl 41.2. As has been explained, cl 41.2 required that the Commissioner and the Association agree guidelines concerning the circumstances in which the Commissioner's discretion to revoke may fall to be exercised, but they cannot fetter the Commissioner's discretion to revoke a LSC appointment.
184 Therefore, even if the LSC Guidelines acquired a second guise as local arrangements under cl 14 of the Award, they must be construed in accordance with their status as the guidelines required to be agreed under cl 41.2 of the Award. They cannot be construed as binding the Commissioner to revoke a LSC appointment when particular circumstances arise.
185 The self-description of the agreed LSC Guidelines as "guidelines" correctly identifies their purpose. They commence by dealing with matters required by cl 41.1 of the Award, namely appointment, including inherent requirements, eligibility and selection criteria, and the selection process.
186 The LSC Guidelines then deal with the revocation of a LSC appointment, and commence by stating:
Commanders must advise the Leading Senior Constable in writing of their intention to revoke their Leading Senior Constable status and outline reasons for their decision. Decisions must be factually based and be supported by documentation
187 Three observations may be made. First, as cl 41.2 of the Award confers a discretion on the Commissioner to revoke a LSC appointment, the reference to the decision of a Commander involving "their intention to revoke", must envisage a delegation by the Commissioner of that power: see s 49(1) of the Interpretation Act; ss 8, 31 of the Police Act. The parties proceeded upon a tacit assumption that Superintendent Glinn, as Commander of the Identification Services Branch, had delegated authority to revoke a LSC appointment.
188 Second, a Commander is required to advise the LSC of their "intention" to revoke the LSC appointment. That connotes notification of a concluded view that the LSC status should be revoked. The LSC Guidelines do not expressly provide for the Commander to have given the LSC an opportunity to make submissions before the LSC is notified of the Commander's intention, but it may be that such a requirement is implied. It could be expected that if such an opportunity is given, an officer could make submissions, not only upon whether the criteria for revocation are satisfied, but any personal or other factors that militate against revocation.
189 Third, upon notification of the Commander's intention, the LSC may, in some circumstances, seek a review by an independent panel. There is also scope for review by the Commander, Human Resources, of a decision of the review panel. It must be contemplated that the review panel and the Commander, Human Resources also have the delegated authority of the Commissioner.
190 Clause 1.29 describes the first circumstance which may lead to revocation of a LSC appointment, described as, "Minor Misconduct (Local Management Issue) or Unsatisfactory Performance". The minor nature of the contemplated conduct clearly envisages that a Commander has a discretion as to whether to revoke a LSC appointment.
191 The next category is described in cl 1.30 as, "Significant Misconduct or Performance Issue". In such cases, "the officer's Leading Senior Constable status will be immediately revoked". However, if the outcome of proceedings taken against the LSC results in no formal management action being taken, the LSC may seek a review of their revocation. Therefore, revocation is not envisaged to necessarily be a final decision.
192 The next category is described in cl 1.31 as "Non-performance". It states that the LSC status "may' be revoked for non-performance of the inherent requirements. This category clearly contemplates a discretionary decision.
193 The next category is described in cl 1.32 as "Transfer". It states that the LSC status "is revoked" on permanent transfer to another location or duty type. The LSC Guidelines indicate that LSC status is granted to fulfil the needs of a particular command, and is not intended to follow an officer if transferred elsewhere. Therefore, there would rarely be a basis for not revoking a LSC appointment upon transfer. However, the provision is not inconsistent with a residual discretion in the Commissioner to decline to transfer.
194 The decision to revoke the appellant's LSC appointment was made by applying cl 1.42 of the LSC Guidelines. That clause provides:
1.42 Injury or Illness
Leading Senior Constables are entitled to take accrued sick leave in accordance with the NSW Police Sick Leave Policy. There is no basis for an officer's performance to be assessed as unsatisfactory or not meeting the inherent requirements on the basis of the legitimate use of sick leave.
If a Leading Senior Constable suffers a work related injury or illness they will have their Leading Senior Constable status maintained during any period of rehabilitation designed to return the officer to their pre injury duties.
If an officer has been certified as unable to return to their pre-injury duties (whether work related or non work related) and is unable to undertake the inherent requirements or has been deployed to other suitable employment, their Leading Senior Constable status will be revoked. If a Commander is seeking for an officer to retain their Leading Senior Constable status in such circumstances this must be forwarded to the Commander, Human Resources for consideration.
(Underlining added.)
195 It will be recalled that the primary judge found that cl 1.42 of the LSC Guidelines does not require any decision to be made. Her Honour found that the words "will be revoked" indicate that the Commissioner was compelled to revoke the appellant's LSC appointment once it was determined that what her Honour considered to be the preconditions, namely that the appellant had been certified as unable to return to his pre-injury duties and certified as unable to undertake the inherent requirements, were satisfied. There are difficulties with the primary judge's reasoning.
196 First, a decision under cl 1.42 of the LSC Guidelines is not one made by the Commissioner. Clause 9 states that, "Commanders must advise the Leading Senior Constable in writing of their intention to revoke their Leading Senior Constable status". Accordingly, the decision under cl 1.42 is made by a Commander in accordance with a delegation of authority by the Commissioner. Whether or not cl 1.42 compels a Commander to revoke an appointment, the LSC Guidelines do not purport to fetter the Commissioner's discretion conferred under cl 41.2 of the Award to revoke, or decline to revoke, an appointment. Nor could the LSC Guidelines validly do so, since cl 41.2 only allows the Commissioner and the Association to agree guidelines, not to restrain the Commissioner's discretion.
197 Second, the terms of cl 1.42 of the LSC Guidelines are, in any event, consistent with a Commander retaining a discretion as to whether to revoke an appointment. Although cl 1.42 provides that the LSC status "will be revoked" if the preconditions are met, a Commander may request that the Commander, Human Resources, make a decision that an officer is to retain their LSC status. Clause 1.28 provides that an officer who is likely to be medically discharged may be placed in an "overstrength position", provided that the officer satisfies the certain medical criteria. These provisions recognise that there may be circumstances warranting retention of an officer's LSC status even though the officer has been certified as unable to return to their pre-injury duties and is unable to undertake the inherent requirements of their position. The provision contemplates that the relevant Commander will form an opinion as to whether the officer should retain their LSC status. It also contemplates that the Commander, Human Resources has the delegated discretion of the Commissioner to allow the LSC status to be retained.
198 For these reasons, the opinion of the primary judge that satisfaction of the preconditions compels the Commissioner to revoke a LSC appointment cannot be accepted.
199 In a letter dated 13 November 2014, Superintendent Glinn, as a delegate of the Commissioner, notified the appellant that, "I have made the decision to revoke your appointment". The letter stated that, "I have made this decision as a consequence of your inability to now fulfil the inherent requirements of the Leading Senior Constable role in the Command". The obligation of the Commissioner, through his delegate, was not to merely make a mechanical decision compelled by application of the LSC Guidelines, but to make a discretionary decision as to whether to revoke the appellant's LSC appointment.
200 Clause 41.2 of the Award confers a discretion on the Commissioner, and carries a necessary implication that the Commissioner will exercise that discretion when making a decision as to whether to revoke a LSC appointment. The Commissioner was not compelled by s 12 of the IR Act, cl 41.2 and cl 1.32 of the LSC Guidelines to revoke the appellant's LSC appointment. As the Commissioner was bound under s 12 of the IR Act to comply with cl 41.2 of the Award, it should be inferred that the Commissioner exercised that discretion and, having exercised it, decided that the appellant's LSC status should be revoked.
201 For there to be a contravention of s 15(2) of the DD Act through direct discrimination under s 5(1), the employer must relevantly, "treat" the employee less favourably than the employer would treat a person without the disability in circumstances that are not materially different. By exercising his discretion to revoke the appellant's LSC appointment, it may be possible that the Commissioner treated the applicant in a manner that may have been less favourable treatment for the purposes of s 5(1) of the DD Act.
202 For there to be a contravention of s 15(2) of the DD Act through indirect discrimination under s 6(1), the employer must "require" an employee to comply with a requirement or condition. The Commissioner required the appellant, at least, to comply with a condition that he be able to fulfil the inherent requirements of the LSC role.
203 The primary judge was in error in concluding that the Commissioner was compelled to revoke the appellant's LSC appointment, and, as a result, could not have "treated" the appellant less favourably than a person without the disability in circumstances that were not materially different within s 5(1) of the DD Act, or "required" the appellant to comply with any requirement or condition within s 6(1) of that Act.
204 This conclusion may make it strictly unnecessary to consider the appellant's alternative submissions that the preconditions under cl 1.42 of the LSC Guidelines were not met. However, these submissions will be considered as it seems possible that they may have some impact on future consideration of the matter.
205 The appellant relies on the statement in cl 1.42 of the LSC Guidelines that, "[t]here is no basis for an officer's performance to be assessed as unsatisfactory or not meeting the inherent requirements on the basis of the legitimate use of sick leave". The appellant submits that this means that while he was on sick leave, the Commissioner could not revoke his LSC status on the basis that he was unable to perform the inherent requirements of the role.
206 However, as has been discussed, the Commissioner was not bound by the LSC Guidelines and was able to exercise his discretion to revoke even if it was contrary to cl 1.42 (subject to any other legal strictures). In any event, cl 1.42 must be read with cl 1.31 which states that, "[c]ertain types of leave are not a trigger for revocation". When cl 1.42 is read with cl 1.31, what is meant is that mere absence from work on sick leave will not of itself provide a basis for assessing an officer as not meeting the inherent requirements of the role.
207 However, the LSC status will only necessarily be retained during any period of rehabilitation designed to return the officer to their pre-injury duties. If the officer's injury or illness results in an inability to return to pre-injury duties, that may provide a basis for assessment as being that they are unable to meet the inherent requirements of their position. The LSC appointment may be revoked if the officer has been certified as unable to return to their pre-injury duties and is unable to undertake the inherent requirements. The appellant's submission that his LSC status could not be revoked whilever he was on sick leave must be rejected.
208 The appellant's submission that the preconditions of cl 1.42 of the LSC Guidelines were not met because he had not been certified as permanently unable to return to pre-injury duties and unable to undertake the inherent requirements of the position must also be rejected. Clause 1.42 states that, "[i]f an officer has been certified as unable to return to their pre-injury duties (whether work related or non work related) and is unable to undertake the inherent requirements or has been deployed to other suitable employment, their Leading Senior Constable status will be revoked". The certification is envisaged to be by a medical or other relevant health practitioner. The requirement of certification relates only to the officer being unable to return to pre-injury duties. Whether the officer is unable to undertake the inherent requirements of their position, or whether the officer has been deployed to other suitable employment, are not matters for certification by a medical or other health practitioner, but for determination by a Commander.
209 The meaning of "certified" used in cl 1.42 is the fourth meaning given in the Macquarie Dictionary, namely, "to assure or inform with certainty". The certification is envisaged to be in writing, but need not be in any particular form. No particular form of words need be used. Dr McMahon, provided a report stating that the appellant, "would best be returned to an alternative role with an alternative employer", and, "medical discharge from the NSW Police Force would be appropriate". This was adequate to amount to certification that the appellant was permanently unable to return to pre-injury duties. Any contrary opinion from Ms Boban did not detract from the position that the certification requirement was satisfied.
210 Grounds 1 and 4(a) of the Notice of Appeal should be upheld.