Federal Court of Australia
Ryan v Commissioner of Police, NSW Police Force [2022] FCAFC 36
ORDERS
Appellant | ||
AND: | COMMISSIONER OF POLICE, NSW POLICE FORCE First Respondent THE STATE OF NEW SOUTH WALES Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The orders made on 16 February 2021 dismissing the appellant’s application, and on 23 April 2021 that the appellant pay 80 percent of the respondents’ costs to be agreed or taxed, be set aside.
3. The proceeding be remitted for rehearing.
4. The respondents pay the appellant’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THE COURT:
1 By a proceeding brought in this Court, the appellant alleged that the first respondent, the Commissioner of Police, NSW Police Force (the Commissioner), had engaged in unlawful discrimination against him on the ground of disability in contravention of s 15(2)(b) and (d) of the Disability Discrimination Act 1992 (Cth) (the DD Act) by revoking his appointment as a Leading Senior Constable (LSC).
2 The appellant’s proceeding was dismissed by a single judge in Ryan v Commissioner of Police, NSW Police Force (No 2) [2021] FCA 106. This is an appeal against that judgment.
3 The appellant was a member of the New South Wales Police Force (the NSW Police Force), who was appointed to the status of LSC in 2002.
4 In 2009, the appellant suffered physical and mental injuries as a result of a motor vehicle accident while on duty. He remained away from work on paid sick leave for the next five years. On 15 January 2015, the Commissioner revoked the appellant’s appointment as a LSC on the ground of inability to fulfil the inherent requirements of his role.
5 The appellant’s case that the revocation of his LSC appointment constituted direct or indirect discrimination in contravention of s 15(2) of the DD Act was rejected by the primary judge.
6 The appellant’s Notice of Appeal alleges that the primary judge erred in finding that:
(1) there was no decision or positive action taken by the Commissioner, capable of constituting direct discrimination, to revoke the appellant’s LSC appointment, for the purposes of s 5(1) of the DD Act;
(2) the decision to revoke the appointment did not constitute denying the appellant a benefit associated with employment for the purposes of s 15(2)(b), or subjecting the appellant to a detriment, for the purposes of s 15(2)(d) of the DD Act;
(3) the appellant was not treated less favourably than an officer without his disability would have been treated, for the purposes of s 5(1) of the DD Act;
(4) the appellant was not subjected to indirect discrimination on the ground of his disability, for the purposes of s 6(1) of the DD Act.
7 By a Notice of Contention, the respondents allege that the primary judge erred by finding that either the Commissioner or the second respondent, the State of New South Wales (the State), was, “an employer or a person acting…on behalf of an employer”, within the meaning of s 15 of the DD Act.
8 It is necessary to consider the factual background, the relevant legislative provisions and the primary judge’s findings, before addressing the parties’ submissions.
9 On 18 May 1984, the appellant commenced as a Probationary Constable in the NSW Police Force, and was confirmed as a police officer at the rank of Constable a year later. On 18 May 1993, he was promoted to the grade of Senior Constable.
10 From April 1990, the appellant was attached to the Identification Services Branch of the Forensic Services Group (the FSG). His work included collection and identification of fingerprints and provision of expert opinions concerning identifications.
11 In 2002, the appellant was appointed as a LSC. That appointment attracted a higher rate of pay than for a Senior Constable at the same level.
12 On 31 May 2009, the appellant was involved in a motor vehicle accident while on duty. He sustained physical and psychological injuries.
13 Until his medical discharge on 17 December 2015, the appellant was certified as either totally unfit for work or partially unfit for work (that is, fit for suitable work on a graded return to work plan). The appellant’s injuries were accepted by the Commissioner as being, “Hurt on Duty” (that is, as an “infirmity arising from a wound or injury received in the actual execution of his or her office” within cl 127(2)(a) of the Police Regulations 2008 (NSW)).
14 On about 17 January 2014, the Commissioner initiated a process to have the appellant medically retired.
15 On 13 November 2014, Superintendent Glinn, then Commander of the FSG, wrote to the appellant advising of his decision to revoke the appellant’s LSC appointment effective from 15 January 2015. The letter commenced by stating:
I am writing to inform you that in accordance with the provisions of Section 21.2 of the NSW Police Force Leading Senior Constable Guidelines (see Attachment 1) I have made the decision to revoke your appointment as a Leading Senior Constable in Fingerprint Operations, Identification Services Branch, Forensic Services Group, effective as of 15 January 2015.
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 as a result of the substantial changes in corporate IT systems, work practices, processes and procedures that have occurred since you were last in the workplace in May, 2009.
16 The letter indicated that Superintendent Glinn had taken into account medical reports from Dr McMahon and Ms Boban, both psychologists, diagnosing the appellant with a number of psychological conditions. The Superintendent had taken into account that the NSW Police Force had a duty of care not to return the appellant to duties which may exacerbate his diagnosed conditions, and the operational need to fill his critical training role with a suitable fully operational officer. The Superintendent’s opinion was that the appellant was unable to meet the LSC eligibility criteria for the FSG.
17 Under the heading, “Capacity to maintain positive and professional relationships with customers”, Superintendent Glinn’s letter referred to Dr McMahon’s report concerning the appellant’s psychological condition and concluded, “I am of the view that [the appellant] will not be able to develop or maintain the positive and professional customer relationships expected…”.
18 Under the heading, “Working closely with less experienced Constables and provide support, mentoring and guidance in all aspects of operational situations”, the letter stated that the appellant, “will clearly not be able to perform this fundamental aspect of the Leading Senior Constable role...”.
19 Under the heading, “Utilisation as Field Teaching Officer to supplement and support the existing Field Teaching Officers in FSG Sections/Branches”, the letter stated that, “Due to [the appellant’s] stated anxiety issues regarding speaking in public… [the appellant] will also not be able to perform this aspect of the Leading Senior Constable role”.
20 Under the heading, “The ability to undertake all duties”, the letter stated, “I am satisfied that it is highly unlikely that [the appellant] will be able to undertake all duties required of a Leading Senior Constable in the Forensic Service Group”. Reference was then made to difficulties with attending and examining complex major crime/incident scenes and providing effective situational leadership to the appellant’s colleagues.
21 The letter concluded:
In conclusion, I wish to assure you that I have not made the decision to revoke your Leading Senior Constable appointment lightly and should you wish to discuss any aspect of this matter…
22 Around 1 December 2014, the appellant sought that the revocation be suspended pending his medical discharge. On 8 December 2014, Acting Superintendent Atalla advised the appellant in writing that the revocation would not be overturned or suspended.
23 On around 13 January 2015, the appellant sought a review of the decision to revoke his LSC status. On 15 January 2015, Inspector Rachelle Conroy, Human Resources Manager of FSG, wrote a report rejecting the application for review. The report stated:
After a review of all of the documentation I am satisfied that the proposed revocation of your Leading Senior Constable appointment is appropriate and within the provisions of the NSWPF Leading Senior Constable Guidelines, in particular 21.2 Injury or illness “If an officer has been certified as unable to return to their preinjury 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.”
Independent medical advice has been received by the New South Wales Police Force confirming that you cannot return to your pre-injury duties within the Fingerprint Operations Branch. It is on this advice that your Leading Senior Constable appointment is being revoked. The revocation of your Leading Senior Constable appointment will be effective as of the 15th January, 2015.
24 Further reviews were sought by the appellant and each was rejected.
25 The appellant continued to hold his appointment as a LSC until it was finally revoked by Superintendent Glinn on and from 15 January 2015.
26 The appellant was medically discharged from the NSW Police Force with effect from 17 December 2015.
27 The consequences for the appellant of the revocation of his LSC appointment included an immediate reduction in the level of his sick leave pay and a subsequent reduction in the level of his pension benefit after his discharge.
28 In evidence before the primary judge, Superintendent Glinn confirmed that it was his decision to revoke the appellant’s LSC status, and that his reasons were set out in his letter of 13 November 2014. Superintendent Glinn’s evidence was that, based on the FSG Leading Senior Constable Eligibility Criteria and his knowledge of the role, a LSC is required to have superior technical skills and expertise, and is required to mentor and guide less experienced police officers in all aspects of police operations. His evidence was that in the five years that the appellant had been out of the workforce, there had been substantial changes which would have required the appellant to undertake training and proficiency testing over a period of time so that he could acquire the necessary and up-to-date skills and expertise.
29 Superintendent Glinn’s evidence was that without training the appellant would not have had the necessary skills to mentor and lead more junior police officers and would not have been up-to-date with the technical skills and expertise required of the role. LSCs in the fingerprint discipline are required to undertake office and field-based crime scene response duties, including attending crime scenes with potentially traumatic visual imagery. They are required to oversee, lead and provide supervisory skills commensurate with contemporary best practice and scientific examination processes. Field-based attendance would also require the appellant to deploy to crime scenes in a police vehicle. Superintendent Glinn’s evidence was that the diagnosis of “persistent severe somatic symptom disorder, with predominant pain”, secondary to “post-traumatic stress disorder” described in the report of Dr McMahon, led him to consider that the appellant would be unable to deal with some of the more stressful aspects of the role, and that deployment to crime scenes could aggravate the appellant’s injuries or expose him to further injury.
30 Superintendent Glinn’s evidence was accepted by the primary judge.
31 Part 2, Division 1 of the DD Act is entitled, “Discrimination in work”.
32 Section 15 is within Part 2, Division 1 and provides:
15 Discrimination in employment
(1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person’s disability:
(a) in the arrangements made for the purpose of determining who should be offered employment; or
(b) in determining who should be offered employment; or
(c) in the terms or conditions on which employment is offered.
(2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability:
(a) in the terms or conditions of employment that the employer affords the employee; or
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
…
33 Section 21A of the DD Act provides:
21A Exception—inherent requirements
Inherent requirements
(1) This Division does not render it unlawful for a person (the discriminator) to discriminate against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discrimination relates to particular work (including promotion or transfer to particular work); and
(b) because of the disability, the aggrieved person would be unable to carry out the inherent requirements of the particular work, even if the relevant employer, principal or partnership made reasonable adjustments for the aggrieved person.
(2) For the purposes of paragraph (1)(b), the following factors are to be taken into account in determining whether the aggrieved person would be able to carry out the inherent requirements of the particular work:
(a) the aggrieved person’s past training, qualifications and experience relevant to the particular work;
(b) if the aggrieved person already works for the discriminator—the aggrieved person’s performance in working for the discriminator;
(c) any other factor that it is reasonable to take into account.
(3) For the purposes of this section, the aggrieved person works for another person if:
(a) the other person employs the aggrieved person; or
(b) the other person engages the aggrieved person as a commission agent; or
(c) the aggrieved person works for the other person as a contract worker; or
(d) the other person and the aggrieved person are members of a partnership; or
(e) both of the following apply:
(i) the other person is an authority or body that is empowered to confer, renew, extend, revoke or withdraw an authorisation or qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation;
(ii) the aggrieved person is a member of that profession, carrying on that trade or engaged in that occupation.
Opportunities for promotion, transfer and training and registered organisations
(4) This section does not apply in relation to:
(a) discrimination referred to in paragraph 15(2)(b) or (d), 16(2)(b) or (d), 17(1)(c) or (d) or 18(3)(c), other than discrimination in determining who should be offered promotion or transfer; or
(b) discrimination referred to in section 20 (registered organisations under the Fair Work (Registered Organisations) Act 2009).
34 There are two types of discrimination contemplated by the DD Act and prohibited under s 15 of the DD Act, direct discrimination and indirect discrimination. Section 5(1) defines direct discrimination as follows:
For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
35 Section 6(1) of the DD Act defines indirect discrimination as follows:
For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to 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.
36 The appellant relied on paragraphs (b) and (d) of s 15(2) of the DD Act. His allegation was that he had been subjected to direct discrimination or, alternatively, indirect discrimination.
37 The definitions of the terms “employment” and “Commonwealth employee” in s 4 of the DD Act will be set out later. There is no definition of, “employee of a State or instrumentality of a State”. However, “instrumentality of a State”, is defined in s 4 to mean, “a body or authority established for a public purpose by a law of a State and includes a local government body”.
The Police Act and Police Regulations
38 The appellant was confirmed as a police officer in 1985. It was common ground that upon enactment of the Police Service Act 1990 (NSW) (the PSA), the appellant was taken to be a police officer appointed to that office under that Act, and employed in accordance with existing awards, industrial agreements and determinations.
39 The PSA became the Police Act 1990 (NSW) (the Police Act) in 2002. The long title of the Police Act stated that it was, “An Act to establish NSW Police, to provide for the management of NSW Police and for the employment of its members of staff; and for other purposes”. Under s 5 of the Police Act, the NSW Police Force is comprised of the Commissioner, the NSW Police Force senior executives and, “all other police officers or non-executive administrative employees who are employed under this Act”.
40 Section 85 of the Police Act provides:
The Commissioner is to be the employer of non-executive officers for the purposes of any proceedings relating to non-executive officers held before a competent tribunal having jurisdiction to deal with industrial matters.
41 Officers on leave for absences arising from work related injuries are paid sick leave. Clause 127 of the Police Regulations provided that an officer who is, “absent from duty because of infirmity of body or mind”, is entitled to receive, “full pay for the whole of the period of the absence”, as approved by the Commissioner.
42 A LSC appointment is not a part of the statutory rank and grade structure of the NSW Police Force: see ss 5 and 12 of the Police Act. The position was introduced as a result of an agreement between the Commissioner and the Police Association of New South Wales (the Association), the registered organisation of employees under the Industrial Relations Act 1996 (NSW) (the IR Act) representing sworn police officers in New South Wales.
43 On 26 April 2001, the Commissioner and the Police Association entered into a Memorandum of Understanding. The LSC status was created under Appendix D and stated that the proposal would be implemented by agreement pursuant to s 86 (now s 87) of the Police Act.
44 On 17 September 2001, the Commissioner and the Police Association, pursuant to s 86 of the Police Act, entered into the formal agreement recognising the appointment. The agreement was entitled, “Police Service of New South Wales Leading Senior Constable Agreement”.
The Industrial Relations Act, the Award and the LSC Guidelines
45 The IR Act governs the making of industrial awards between employers and employees.
46 Section 10 of the IR Act provides:
The Commission may make an award in accordance with this Act setting fair and reasonable conditions of employment for employees.
47 Section 12 of the IR Act provides:
12 Persons bound by award
(1) 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.
(2) An award that applies to a particular industry is, subject to its terms, taken to bind all employees and employers engaged in the industry.
(3) An award is, subject to its terms, binding on all industrial organisations that were a party to the making of the award.
48 Section 406(1) of the IR Act provides that the conditions of employment set by an industrial instrument (which is defined in s 8 of the IR Act to include an award) provide the minimum entitlements of the employees. A breach of an award provision may result in the imposition of civil penalties under s 357 or an injunction under s 359(1).
49 At the time of the appellant’s appointment as a LSC, the Crown Employees (Police Officers – 2001) Award applied to his position. That award and each of the successor awards entitled LSCs to higher rates of pay than other senior constables of the same rank, grade and incremental level.
50 The Crown Employees (Police Officers – 2013) Award (the 2013 Award) commenced on 25 June 2013. Clause 41.1 of the 2013 Award stated:
Subject to provisions duly agreed between the Commissioner and the Association a Non-Commissioned Officer of the rank of Senior Constable may be appointed as a Leading Senior Constable.
51 Clause 41.2 of the 2013 Award is critical. It provided, relevantly:
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.
52 It is common ground that the, “provisions duly agreed between the Commissioner and the Association” for the purposes of cl 41.2 are contained in the “Leading Senior Constable Guidelines” (the LSC Guidelines) published in July 2014.
53 At the time of revocation of the appellant’s LSC status and his medical retirement, the Crown Employees (Police Officers – 2014) Award (the 2014 Award) applied. As the 2013 Award and the 2014 Award were relevantly identical, it is convenient to refer to each of them as “the Award”.
54 The LSC Guidelines set out the inherent requirements of a LSC. The requirements are adequately described in Superintendent Glinn’s letter of 13 November 2014. The appellant does not contend that he in fact satisfied those requirements.
55 Under the heading, “Revocation of Leading Senior Constable Appointment”, the LSC Guidelines provide:
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 eg. Career Management System Performance Reviews and any records of counselling. Where possible the notice should be presented to the Leading Senior Constable in person with provision for its receipt to be acknowledged by the officer.
56 Clause 1.42 of the LSC Guidelines is in the following terms:
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.)
57 It was cl 1.42 of the LSC Guidelines which was applied by Superintendent Glinn to revoke the appellant’s LSC status.
The judgment of the primary judge
58 The first issue considered by the primary judge was whether the Commissioner, or alternatively the State, was, “an employer or a person acting…on behalf of an employer”, within the meaning of s 15(2) of the DD Act. If not, that provision would have no application.
59 The respondents submitted that s 15 of the DD Act adopts the common law position that a police officer is not an employee. The primary judge accepted that, at common law, members of the police force are not employees, but are independent office holders exercising original authority in the execution of their duties. However, her Honour held that “employment” in the DD Act is not used in its common law sense, but its ordinary sense, namely, “to refer to a person who is paid for performing work on a regular basis and at the direction of another”. Her Honour held that, accordingly, the appellant was an employee for the purposes of the DD Act. Her Honour appeared to accept that the appellant’s employer was the Commissioner, rather than the State of New South Wales.
60 The primary judge then considered the appellant’s argument that he was the subject of direct discrimination within s 5(1) of the DD Act in that the revocation of his LSC appointment occurred because of, or for reasons that included, that he had, or was imputed to have, a disability arising from a psychological disorder. He contended, alternatively, that the application of the LSC Guidelines in revoking his LSC appointment indirectly discriminated against him within s 6(1) of the DD Act. The appellant submitted that there was, “a particular voluntary decision made by the Superintendent Glinn…to revoke the [appellant’s] leading Senior Constable appointment”.
61 The respondents submitted that it was necessary for the Commissioner to have taken positive action for unlawful discrimination to occur, and that no such action took place. The respondents submitted that the revocation was compelled by cl 1.42 of the LSC Guidelines and that no decision was made by the Commissioner.
62 The primary judge noted that the premise of the appellant’s submission was that the LSC Guidelines provide that an officer is entitled to maintain their LSC status for the entire time they are on sick leave. Her Honour rejected that submission and upheld the respondents’ argument that if the preconditions in cl 1.42 of the LSC Guidelines exist, then revocation of the LSC status is compelled. Her Honour held:
160 Properly understood the revocation clause 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.
…
162 That being so, if the preconditions existed, the Commissioner acted in accordance with the Guidelines in revoking his status. The Guidelines compelled the result.
63 The primary judge then proceeded to consider whether the preconditions for revocation under cl 1.42 were satisfied. The appellant submitted that they were not satisfied and that he was entitled to retain his LSC status, “during any period of rehabilitation designed to return the officer to their pre-injury duties”. The appellant also submitted that the reference in cl 1.42 to being, “unable to undertake the inherent requirements” of the LSC position should be understood as being permanently unable to do so, whereas he had been certified as fit for suitable duties and had expressed a desire to return to the workplace to undertake rehabilitation.
64 The primary judge observed that the appellant’s argument had a degree of artificiality because after the revocation of his LSC appointment, he had informed the Commissioner that he did not intend to challenge the Commissioner’s application for him to be medically discharged. As a consequence, no evidence was put to the Commissioner against the proposition that he was incapable of performing his duties.
65 The primary judge noted that Dr McMahon had diagnosed the appellant as suffering from, “Persistent Severe Somatic Symptom Disorder with Predominant Pain”, secondary to, “Post Traumatic Stress Disorder”. Her Honour considered Dr McMahon’s report to be sufficient by itself, given the nature of the LSC role, to satisfy the preconditions of cl 1.42 of the Guidelines. The fact that Dr McMahon’s report did not use terminology like “certified”, or, “being unable to undertake the inherent requirements of the LSC position”, did not detract from the conclusion expressed in the report.
66 Superintendent Glinn had given evidence concerning the basis on which he found the preconditions in cl 1.42 were satisfied, including why the appellant was unable to undertake the inherent requirements of the LSC appointment. Her Honour accepted that the appellant was unable to undertake the inherent requirements of his position. Accordingly, the preconditions were satisfied.
67 The primary judge next considered the respondents’ submission that the application must nonetheless fail because the appellant had pleaded breach of paragraphs (b) and (d) of s 15(2) of the DD Act when, on proper consideration, neither applied to the revocation of the LSC appointment. The respondents submitted that, properly understood, the claim falls within s 15(2)(a) of the DD Act. The significance of the way the case was pleaded was, in part, that s 21A(1) of the DD Act provides that it is not unlawful for a person to discriminate against another person on the ground of a disability if, relevantly, because of the disability, the aggrieved person would be unable to carry out the inherent requirements of the particular work even if reasonable adjustments were made for the aggrieved person. However, s 21A(4) provides that the provision applies to s 15(2)(a) but not to s 15(2)(b) and (d) of the DD Act.
68 The primary judge considered that s 15(2)(a) to (d) are each directed to different kinds of conduct or treatment, and that s 15(2)(d) is a residual provision which only applies to matters not otherwise covered by the preceding paragraphs. Her Honour held that if the allegations, properly considered, fall within s 15(2)(a), they do not fall within s 15(2)(b) or (d). Her Honour went on to conclude that the allegations fell within s 15(2)(a). Her Honour held:
211 The applicant’s complaint, properly construed, falls within s 15(2)(a). As the applicant accepted, if the conclusion is that the revocation is mandated by the Guidelines, and it was not as a result of a voluntary decision of Superintendent Glinn, the complaint is about the terms and conditions of the LSC.
212 It follows that the applicant’s complaint does not fall within (b) or (d), and consequently, the applicant cannot establish his case as pleaded. I note that although this was a live issue during these proceedings, the applicant did not seek to amend the pleadings. It also has the consequence, as explained below, that cl 1.42 does not impose a condition for the purposes of indirect discrimination.
69 The primary judge then went on to hold that even if cl 1.42 did not compel the result that the LSC status be revoked, or if the claim fell within s 15(2)(b) or (d) instead of (a), the appellant would not have established direct discrimination.
70 Her Honour rejected the appellant’s characterisation of the appropriate comparator. Her Honour considered that the relevant circumstances include the functions, powers and responsibilities of the Commissioner and the industrial arrangements. In that context, the relevant comparator was a police officer holding the status of a LSC, and the relevant circumstances included that the officer could not perform the inherent requirements of the LSC position. Her Honour held that a LSC who could not perform the inherent requirements in the circumstances identified would have their status revoked. Her Honour held that the appellant had not established that he was treated less favourably than a person without the disability would be treated in circumstances not materially different.
71 In view of this finding, her Honour considered that the question of whether there had been less favourable treatment “because of the disability” did not arise.
72 The primary judge turned to the allegation of indirect discrimination. The appellant contended that the terms of the LSC Guidelines indirectly discriminated against him, as a person with a disability, within s 6(1) of the DD Act. He contended that cl 1.42 of the LSC Guidelines imposed, “a requirement or condition that for an LSC appointment to be maintained while on paid sick leave the unfit officer not be found permanently unable to undertake the inherent requirements of an LSC appointment”. He submitted that such a term or condition was not reasonable.
73 The primary judge found that the appellant’s characterisation of the condition was incorrect because that contention assumed that there was a discretion as to whether or not to revoke the LSC status, when properly understood, cl 1.42 of the LSC Guidelines compelled that result. In addition, her Honour considered that the condition in cl 1.42 was more properly described as being that a police officer be able to be certified to perform pre-injury duties and perform the inherent requirements of the LSC role.
74 Her Honour also considered that attention must be directed to the terms and conditions attendant upon the appellant by his appointment as a LSC. Her Honour accepted that, “there is a distinction between something which adheres to the status or the nature of the appointment, as opposed to something which is separately imposed outside the nature of the appointment”. Her Honour considered that cl 1.42 of the Guidelines is part of the terms and conditions of the appointment and, on that basis, there was no requirement or condition within s 6(1)(a) of the DD Act.
75 The primary judge also held that, even if it were assumed that the condition in cl 1.42 of the LSC Guidelines was as alleged by the appellant and it fell within s 6(1)(a), the condition was reasonable. That conclusion depended, in part, upon her Honour’s construction of the LSC Guidelines, including the absence of a discretion to refuse to revoke a LSC appointment.
76 For these reasons, her Honour dismissed the application.
77 In a subsequent judgment, the primary judge ordered that the appellant pay 80% of the respondents’ costs: Ryan v Commissioner of Police, NSW Police Force (No 3) [2021] FCA 408.
Consideration of the Notice of Contention
78 It is convenient to commence with the respondents’ Notice of Contention since it would, if successful, provide a complete answer to the appellant’s appeal.
79 The respondents contend that the primary judge erred by finding that the Commissioner or the State were, “an employer or person acting…on behalf of an employer”, and that the appellant was an “employee”, within s 15(2) of the DD Act. If the Commissioner or the State did not come within that description, s 15(2) had no application and the proceeding ought to have been dismissed for that reason.
80 The respondents submit that the term “employment” in s 15(2) has its ordinary meaning derived from common law, and describes, “the existence of a relationship between an employer and employee engaged under a contract of employment”. They argue that, at common law, a police officer is not engaged under a contract of employment and is not an employee.
81 The respondents submit that the definition of “employment” in s 4 of the DD Act is intended to provide an exhaustive explanation of the meaning to be attached to that word. It is argued that Parliament specified the circumstances where an appointment to public office or membership of a disciplined force would be deemed to constitute an employment relationship by using words such as “appointed”, “engaged”, “holds office or appointment” and “member” in the definition of “Commonwealth employee” in paragraph (c) of the definition. They submit that the omission of similar expressions in relation to “State employee” indicates an intention to omit police officers. This is said to be reinforced by use of the phrase, “employee of a State”, in paragraph (d) of the definition.
82 The respondents submit that cases which have held that police officers are “employees” in other legislative contexts are of no assistance in interpreting s 15(2) of the DD Act. They argue that international instruments are consistent with the adoption of the common law meaning of “employment” in s 15(2). The respondents also submit that s 85 of the Police Act does not assist the appellant.
83 The appellant submits that the primary judge was correct to find that he was an “employee” within s 15(2) of the DD Act for the reasons given by her Honour.
84 Section 15(2) of the DD Act provides:
(2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability:
(a) in the terms or conditions of employment that the employer affords the employee; or
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
85 Section 4 of the DD Act defines “employment” as follows:
employment includes:
(a) part time and temporary employment; and
(b) work under a contract for services; and
(c) work as a Commonwealth employee; and
(d) work as an employee of a State or an instrumentality of a State.
86 Section 4 defines “Commonwealth employee” as follows:
(a) is appointed or engaged under the Public Service Act 1999;
(b) holds an administrative office; or
(c) is employed by a public authority of the Commonwealth; or
(d) holds an office or appointment in the Commonwealth Teaching Service or is employed as a temporary employee under the Commonwealth Teaching Service Act 1972; or
(e) is employed under the Australian Security Intelligence Organisation Act 1979 or the Commonwealth Electoral Act 1918; or
(f) is a member of the Defence Force; or
(g) is the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979).
(h) is a person employed or engaged under the Members of Parliament (Staff) Act 1984.
…
87 The DD Act does not define the expression, “employee of a State or an instrumentality of a State”.
88 There are two steps involved in the respondents’ argument that the Commissioner or the State was not, “an employer or a person acting or purporting to act on behalf of an employer”, and the appellant was not an “employee”, within s 15(2) of the DD Act. The first is that the terms “employer” and “employee” in s 15(2) of the DD Act have their common law meanings and require a relationship existing under a contract of employment. The second is that while the definition of “employment” in s 4 expands the meaning of those terms, it does so exhaustively, and in a manner that excludes State police officers.
89 At common law, the relationship of employee and employer is formed under a contract of employment: Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 at [16]; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 at [41].
90 In the absence of a statutory provision to the contrary, members of a police force are not employed under a contract of employment, but are independent office-holders exercising original authority in the execution of their duties. In Attorney-General for New South Wales v Perpetual Trustee Co Ltd (1955) 92 CLR 113, Viscount Simonds, delivering the judgment of the Privy Council, observed at 129:
…[T]here is a fundamental difference between the domestic relation of servant and master and that of the holder of a public office and the State which he is said to serve. The constable falls within the latter category. His authority is original not delegated and is exercised at his own discretion by virtue of his office: he is a ministerial officer exercising statutory rights independently of contract. The essential difference is recognized in the fact that his relationship to the Government is not in ordinary parlance described as that of servant and master.
(See also Attorney-General for New South Wales v Perpetual Trustee Co Ltd (1952) 85 CLR 237 at 252-253, 261-262, 278-279; Enever v The King (1906) 3 CLR 969 at 982; Sheikh v Chief Constable of Greater Manchester Police [1990] 1 QB 637 at 643.)
91 The common law position is not affected in New South Wales by the Police Act. While there are provisions expressly declaring that the Commissioner (s 27) and members of the Senior Executive Service (ss 32-42) are employed under contracts of service, there are no equivalent provisions in respect of other police officers.
92 The respondents’ argument is not without substance. It is certainly arguable that s 15(2) of the DD Act intends to adopt the common law meaning of “employer”, “employee” and “employment”. If so, a constable serving in the NSW Police Force is excluded from the scope of that provision.
93 There is merit in the respondents’ submission that the definition of “employment” in s 4 of the DD Act is intended to be exhaustive. That definition includes (in paragraph (c)) a “Commonwealth employee”, which is then defined using words that include “appointed”, “engaged”, “holds an office or appointment” and “is a member of”. Accordingly, the legislation is specific where it intends that appointment to a public office or membership of a disciplined force of the Commonwealth is to create an employment relationship. Further, the definition of “Commonwealth employee” expressly includes a, “special member of the Australian Police Force”. In contrast, there is no definition of the term “State employee”. That omission is consistent with a legislative intention to exclude members of a State police force from s 15(2) of the DD Act.
94 However, a number of factors point to a more expansive meaning of “employer” and “employee” in s 15(2) of the DD Act than that contended for by the respondents.
95 First, the language of s 15(2) of the DD Act is consistent with a broader construction. There is more than one ordinary meaning of “employer” and “employee”. As Spigelman CJ (the other members of the Court agreeing) observed in Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 at [82]:
The word “employee” has a legal meaning in the sense of a person who has a contract of employment with another. However, the word is capable of being used in a more general sense to encompass a person who is paid for performing work on a regular basis at the request, and at the direction, of another. In particular statutes the word “employee” will often be construed to extend to an independent contractor, even in the absence of an express statutory extension of a character contained in the Anti-Discrimination Act. The issue turns on the proper construction of the word in its context, in which process the scope and purpose of the statute under consideration plays an important part.
96 In Police Service of New South Wales v Honeysett (2001) 53 NSWLR 592, Priestley JA (with whom the other members of the Court agreed) held at [28], “…in ordinary language usage there is no difficulty in understanding that police officers are employees”.
97 Although “employer” and “employee” are not defined in the DD Act, the cognate term “employment” is defined in s 4. That definition commences with the word “includes”, and is then followed by four categories of persons who are encompassed by the definition. The premises of the respondents’ argument are that s 15(2) of the DD Act adopts the common law meanings of “employer” and “employee”, and that the purpose of the definition of “employment” in s 4 is to exhaustively explain the categories to be attached to the word.
98 When a definition provision uses the word “includes”, it is generally intended to enlarge the ordinary meaning of the word being defined, or to avoid possible uncertainty as to whether something may come within the definition, or both: Re Gray; Ex parte Marsh (1985) 157 CLR 351, 364–365; Zickar v MGH Plastic Industries Pty Limited (1996) 187 CLR 310; Caltex Australia Petroleum Pty Ltd v Commissioner of Taxation [2019] FCA 1849 at [27]. However, the term can also provide an exhaustive explanation of the meanings to be attached to the word if the context in which the word appears reveals that intention: YZ Finance Company Pty Ltd v Cummings (1964) 109 CLR 395 at 398-399; see also Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019) at [6.6]–[6.8].
99 The first category in the definition of “employment” (paragraph (a), “part-time and temporary employment”), would clearly fall within the concept of employment under a contract of employment, as well as the broader meaning. The purpose of this category seems to be to confirm that persons in that category are employees.
100 The second category (paragraph (b), “work under a contract of services”) extends beyond the common law meaning of “employment”, and indicates an intention not to confine the definition to its common law meaning, but to extend it.
101 The third category (paragraph (c), “work as a Commonwealth employee”, which is then further defined) encompasses a mixture of persons who would come within the common law meaning and others (such as members of the Defence Force and the Australian Federal Police) who would not. This category appears intended to confirm that provisions using “employment” (or cognate terms) apply to the Commonwealth. It also appears, in part, to be confirmatory of the common law meaning of the term and, in part, to extend beyond the common law meaning.
102 The fourth category (paragraph (d), “work as an employee of a State or an instrumentality of a State”) appears intended to confirm the application of provisions using “employment” (or cognate terms) to both State instrumentalities and the States themselves.
103 Neither the language nor the content of the definition of “employment” supports the respondents’ argument that the definition is exhaustive. The word “includes” ordinarily indicates that the definition is not exhaustive and that other matters or things may come within the scope of the word or phrase defined. In YZ Finance, where a provision defined the word “security” to “include” a list of items, and each item fell within the natural meaning of the word, it was held that the list was exhaustive. That is not the present case. The definition of “employment” is consistent with “employee” in s 15 of the DD Act having a meaning that is not confined to a person employed under a contract of service and is inclusive.
104 Accordingly, the language of s 15(2) of the DD Act is capable of referring to an employee in the sense of a person paid for performing work on a regular basis at the request and direction of another.
105 Second, the purpose of s 15 of the DD Act is consistent with the broader interpretation. Section 15AA of the Acts Interpretation Act 1901 (Cth) provides that the interpretation that would best achieve the purpose or object of an Act is to be preferred to each other interpretation.
106 In Russell, it was held that an officer of the NSW Police Force is an “employee” of the Commissioner within s 53 of the Anti-Discrimination Act 1977 (NSW). In Honeysett, it was held that an officer of the NSW Police Force is an “employee” for the purposes of s 3 of the Employees Liability Act 1991 (NSW). In Konrad v Victoria (1999) 91 FCR 95, it was held that a police officer was an “employee” who was entitled to the protection of Division 3 of the Industrial Relations Act 1988 (Cth). While the respondents are correct to point out that the statutory regimes considered in those cases are quite different to the DD Act, the purposive approach to interpretation adopted in those cases is informative.
107 In IW v City of Perth (1997) 191 CLR 1, Brennan CJ and McHugh J referred to the remedial objects of the Equal Opportunity Act 1984 (WA) and then held at 12:
Consequently, the provisions of the Act should as far as possible be given a construction that would eliminate discrimination on the ground of impairment.
108 In the same case, Dawson and Gaudron JJ held at 22:
In construing legislation designed to protect basic human rights and dignity, the courts “have a special responsibility to take account of and give effect to [its] purpose”. For this reason, the provisions of the Act concerned with discrimination in the provision of goods or services, including s 66K(1), should be construed as widely as their terms permit.
109 To similar effect, Kirby J held at 58:
Especially where important human rights are concerned, protective and remedial legislation should not be construed narrowly lest courts become the undoers and destroyers of the benefits and remedies provided by such legislation. Courts will not unduly stretch the language of such legislation. But they will be very slow to find that the effect of something which is discriminatory falls outside the ambit of the legislation, given its purpose.
110 It is true that the High Court has more recently held that, “to commence the process of construction by posing the type of construction to be afforded – liberal, broad or narrow – may obscure the essential question regarding the meaning of the words used”: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232 at [32]-[33]. Rather, as Gageler J pointed out at [92], “[t]he principle that beneficial legislation is to be construed beneficially is a manifestation of the more general principle that all legislation is to be construed purposively”. That general principle is mandated by s 15AA of the Acts Interpretation Act: Tjungarrayi v Western Australia (2019) 269 CLR 150 at [44] (Gageler J). However, this does not justify a simplistic assumption that whatever construction furthers the statute’s primary purpose must be determinative: Tjungarrayi at [46] (Gageler J); Carr v Western Australia (2007) 232 CLR 138 at [5]-[7] (Gleeson CJ). We do not read the passages in IW v City of Perth as requiring any different approach.
111 The remedial objects of the Act are described in s 3 as, relevantly, “to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of…work…”. It may be noted that if State police officers are not “employees”, they would also be excluded from protection against harassment in employment in relation to disability under s 35 of the DD Act. The breadth of this object is inconsistent with ss 15 and 35 adopting a narrow meaning of “employer” and “employee”.
112 Although police officers are independent office-holders, as Priestly JA observed in Honeysett at [30], “…in many ways the conditions of service of police officers [have] been substantially assimilated to those of ordinary employees…”. Police officers with disabilities are no less vulnerable to discrimination and in need of protection than “ordinary employees”. The respondents have not pointed to any social, political or financial explanation for why the legislative intention could be to exclude State police officers from the protection afforded under s 15(2) to “ordinary employees”, nor have they argued that there was some constitutional impediment to the inclusion of State police officers within the scope of that provision.
113 It would be anomalous and seemingly capricious for ss 15(2) and 35 of the DD Act to offer protection to the Commissioner and to the Senior Executive Service of the NSW Police Force as employees under contracts of employment, but to exclude police officers of lower ranks from that protection. It would seem similarly anomalous and capricious for members of the Australian Federal Police Force (who are engaged as employees under s 24(1) of the Australian Federal Police Act 1979 (Cth)) to be protected, but not members of State police services. It is improbable that this could be the legislative intention.
114 Third, s 12(8) states that Division 1 of Part 2 (including s 15) of the DD Act is intended to give effect to Australia’s obligations under the Discrimination (Employment and Occupation) Convention 1958 adopted by the General Conference of the International Labour Organisation on 25 June 1958 (the Convention). Article 2 provides:
Each Member for which this Convention is in force undertakes to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof.
115 The Convention is extrinsic material capable of being taken into account to confirm that the meaning of a provision is the ordinary meaning conveyed by the text of the provision taking into account its context, purpose and the object underlying the Act, or to determine the meaning of an ambiguous provision: s 15AB of the Acts Interpretation Act; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287. It cannot be the case that “employment” was intended to have its common law meaning in the Convention, given that the overwhelming majority of States who adopted the Convention are not common law countries: cf. Konrad at [102]. In any event, Australia’s obligations under Art 2 of the Convention were in respect of equality of treatment in “occupation”, not just “employment”. Therefore, adopting a narrow meaning of the word “employee” in s 15(2) of the DD Act would place Australia in breach of its obligations under the Convention: cf. Konrad at [103].
116 Accordingly, s 15(2) of the DD Act refers to an “employee” in the sense of a person paid for performing work on a regular basis at the request and direction of another person. An “employer” has a corresponding meaning.
117 The primary judge was correct to find that the appellant was an “employee”. Her Honour found that either the Commissioner or the State was the appellant’s “employer”. It was not contended that her Honour erred in failing to determine whether it was the Commissioner or the State which was the employer.
118 It is unnecessary to consider the appellant’s alternative argument that the Commissioner is deemed under s 85 of the Police Act to be the employer of non-executive police officers for the purposes of, “any proceedings…held before a competent tribunal having jurisdiction to deal with industrial matters”, and that the proceeding in this Court is such a proceeding.
119 The Notice of Contention must be rejected.
Consideration of the Notice of Appeal
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.
Ground 2: Whether the primary judge erred in finding that the appellant’s complaint fell within paragraph (a), and not (b) or (c), of the s 15(2) of the DD Act
211 Ground 2 of the Notice of Appeal alleges that the primary judge erred in finding that the decision to revoke the appellant’s appointment as a LSC did not constitute denying the appellant a benefit associated with employment for the purposes of s 15(2)(b), or subjecting the appellant to a detriment for the purposes of s 15(2)(d) of the DD Act.
212 Although having concluded that the appellant’s application should be dismissed on the basis that the Commissioner, being compelled to revoke the appellant’s LSC appointment, had not discriminated against the appellant within ss 5(1) or 6(1) of the DD Act, the primary judge went on to consider the other issues raised in the case.
213 Her Honour’s opinions that cl 1.42 of the LSC Guidelines compelled revocation of the LSC status once the preconditions were met and that the Commissioner has no discretion to decline to revoke the LSC status affected a number of the significant findings that were subsequently made.
214 The primary judge considered the submission made by the respondents that the application must fail because the appellant had relied on paragraphs (b) and (d) of 15(2) of the DD Act. The respondents submitted that neither paragraph applied to the revocation of the appellant’s LSC appointment because the revocation fell within paragraph (a) of s 15(2). Her Honour held that the paragraphs are each directed to different kinds of conduct or treatment; and that if the pleaded allegations, properly considered, fall within paragraph (a), they would not fall within paragraphs (b) or (d).
215 The primary judge noted the appellant submitted that maintaining a LSC appointment while on paid sick leave was a benefit of the appellant’s employment as a LSC. It was submitted that revocation of the LSC status denied the appellant access to that benefit and fell within s 15(2)(b) of the DD Act. The appellant submitted, alternatively, that revocation of that status was a detriment within s 15(2)(d) of the DD Act.
216 Section 15(2)(a) of the DD Act refers to, “the terms or conditions of employment that the employer affords an employee”. The primary judge found that the appellant’s allegation came within paragraph (a). Her Honour found that cl 1.42 of the LSC Guidelines provided for the terms of employment, and that if the preconditions in the clause existed, the clause compelled revocation, and, in that sense, the revocation was mandatory. Her Honour held that the appellant’s real complaint, properly understood, was as to the terms and conditions of employment found in cl 1.42 of the LSC Guidelines.
217 The primary judge held that as paragraph (a) of s 15(2) of the DD act applied, paragraphs (b) and (d) did not apply. As the appellant’s pleading relied only on paragraphs (b) and (d), her Honour held that the proceeding should be dismissed.
218 It may be seen that the primary judge’s reasoning was substantially based upon the construction of cl 1.42 of the LSC Guidelines as requiring the mandatory revocation of the LSC appointment when the preconditions are satisfied. That construction has been held to be erroneous. It follows that Ground 2 should be upheld.
219 The appellant submitted that if Ground 1 of the Notice of Appeal were upheld, it was unnecessary to determine Ground 2 on any basis other than that the primary judge erred in construing cl 1.42 of the LSC Guidelines as requiring the mandatory revocation. The respondents did not dissent from that proposition. Accordingly, the correctness of her Honour’s construction of s 15(2) of the DD Act has not been considered.
Ground 3: Whether the primary judge erred in finding that the appellant was not treated less favourably than an officer without the appellant’s disability
220 The third ground of the Notice of Appeal alleges that the primary judge erred in finding that the appellant was not treated less favourably than a person without the disability for the purposes of s 5(1) of the DD Act.
221 The primary judge held that even if cl 1.42 did not compel the result that the LSC status be revoked, or if the claim fell within ss 15(2)(b) or (d) instead of (a), the appellant had not established direct discrimination.
222 Her Honour rejected the appellant’s characterisation of the appropriate comparator. Under that characterisation, the comparator police officer was said to be one who: is absent from work on paid leave arising from a work related injury for an extended time; continues to be entitled to paid leave; and is entitled to remain on paid sick leave until they become well or are medically retired.
223 The primary judge considered that the appellant’s submission ignored the requirement of s 5(1) of the DD Act that the comparator be a person without the disability in circumstances that are not materially different. Her Honour found that the relevant circumstances include the functions, powers and responsibilities of the Commissioner and the industrial arrangements and, in that context, the relevant comparator is a police officer holding the status of LSC. The LSC Guidelines refer to other circumstances where the officer may no longer be able to perform the inherent requirements required of a LSC, such as in cll 1.31 and 1.42 where the officer is deployed to other suitable employment. Her Honour considered that the relevant circumstances included that the officer could not perform the inherent requirements of the LSC position. Her Honour held that a LSC who could not perform the inherent requirements of the position in the circumstances identified would have their status revoked. Her Honour held that the appellant had not established that he was treated less favourably than a person without the disability in circumstances that were not materially different.
224 The primary judge’s reasoning again proceeded on the erroneous basis that cl 1.42 of the LSC Guidelines mandates revocation of a LSC appointment when the preconditions are satisfied. That error was material to her Honour’s conclusion. Ground 4 should be upheld on that basis.
Ground 4(b): Whether the primary judge erred in finding that revocation of the appellant’s LSC appointment because he was certified as unable to return to pre-injury duties and was unable to fulfil the inherent requirements of the position was reasonable
225 Ground 4(b) of the Notice of Appeal alleges that the primary judge erred in finding that the appellant was not subjected to indirect discrimination for the purposes of s 6(1) of the DD Act. The primary judge found that a requirement or condition imposed by the Commissioner that the revocation of the appellant’s LSC appointment because he was certified as unable to return to pre-injury duties and was unable to fulfil the inherent requirements of the position was reasonable. It is alleged that this finding involved error.
226 The appellant contended before the primary judge that the terms of the LSC Guidelines indirectly discriminated against him, as a person with a disability, within s 6(1) of the DD Act. He contended that cl 1.42 of the LSC Guidelines imposed a “requirement or condition” within s 6(1). He argued that there was imposed, “a requirement or condition that for an LSC appointment to be maintained while on paid sick leave the unfit officer not be found permanently unable to undertake the inherent requirements of an LSC appointment”. He submitted that such a term or condition was not reasonable.
227 The primary judge found that the appellant’s characterisation of the condition was incorrect. This was, first, because the appellant’s contention assumed that there was a discretion as to whether or not to revoke the LSC status, when, properly understood, cl 1.42 of the LSC Guidelines compelled that result. Second, her Honour considered that the condition in cl 1.42 was more properly described as being that a police officer be able to be certified to perform their pre-injury duties and perform the inherent requirements of the LSC role.
228 Her Honour also considered that attention must be directed to the terms and conditions attendant upon the appellant by his appointment as a LSC. Her Honour accepted that, “there is a distinction between something which adheres to the status or the nature of the appointment, as opposed to something which is separately imposed outside the nature of the appointment”. Her Honour considered that cl 1.42 of the LSC Guidelines is part of the terms and conditions of the appointment and, on that basis, there was no requirement or condition within s 6(1)(a) of the DD Act.
229 The primary judge also held that, even if were assumed that the condition in cl 1.42 of the LSC Guidelines was as alleged by the appellant and it fell within s 6(1)(a) of the DD Act, the condition was reasonable.
230 The primary judge’s conclusions were again integrally related to the erroneous finding that the existence of the preconditions in cl 1.42 of the LSC Guidelines mandated revocation of a LSC appointment. Ground 4(b) should succeed.
231 A common and fundamental thread running through of the primary judge’s reasons was the finding that cl 1.42 of the LSC Guidelines mandated revocation of a LSC appointment when the preconditions under that clause were satisfied. That finding stemmed, with respect, from a misconstruction of cl 41.2 of the Award which gave the Commissioner a discretion to revoke a LSC appointment, and led to the misconstruction of cl 1.42 of the LSC Guidelines.
232 The appropriate orders are to allow the appeal, to set aside the orders made by the primary judge, including orders as to costs, and to remit the matter for rehearing.
233 The parties agreed that the costs of the appeal should follow the outcome. The respondents should pay the appellant’s costs of the appeal.
I certify that the preceding two hundred and thirty-three (233) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Griffiths, Rangiah and Perry. |
Associate:
