F Federal Court of Australia

Ryan v Commissioner of Police, NSW Police Force (No 2) [2021] FCA 106

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

1    The applicant, a former NSW police officer, was medically discharged from the NSW Police Force (NSWPF) on 17 December 2015. He alleges that the first respondent, the Commissioner of Police, NSW Police Force (the Commissioner) discriminated against him for the purposes of s 15(2)(b) and/or (d) of the Disability Discrimination Act 1992 (Cth) (DD Act) by revoking his appointment as a Leading Senior Constable (LSC) because of, or for reasons which included, that the applicant had, or was imputed to have, a disability arising from a work related psychological condition. The effect of the revocation was to reduce his rate of pay. Upon his medical retirement, the applicant became entitled to a lifetime pension as a member of the Police Superannuation Fund, which is calculated by reference to his salary as at the date of his discharge. The applicant contended that as a result of the revocation his pension was reduced such that he continues to suffer financial loss and that he will continue to do so until his death. The applicant also contended that his wife will also suffer financial loss until her death as a result of the revocation.

2    On 21 November 2017, the applicant made a complaint to the Australian Human Rights Commission (AHRC) alleging unlawful discrimination on the grounds of disability in his employment. On 11 April 2018, that complaint was terminated under ss 46PF(1)(b) and 46PH(1)(b) of the Australian Human Rights Commission 1986 Act (Cth) (AHRC Act) by a delegate of the AHRC.

3    On 7 June 2018, leave to commence proceedings in this Court was granted pursuant to s 46PO(3A) of the AHRC Act: Ryan v Commissioner of Police, NSW Police Force [2019] FCA 1607. Following the grant of leave to commence proceedings, at the hearing of this matter, leave was granted to the applicant to amend the Statement of Claim so as to add the State of New South Wales as a respondent in the alternative. The Commissioner did not oppose the application and his counsel was instructed to then appear for both respondents.

4    The issues raised by this application are: first, whether an employment relationship existed between the applicant and either of the respondents, for the purpose of establishing a breach of the DD Act such as to give this Court jurisdiction; second, the effect of cl 1.42 of the 2014 Leading Senior Constable Guidelines (the Guidelines), which provided the basis on which the appointment as an LSC was revoked, and in particular whether it compelled the outcome if the preconditions to that clause existed; third, whether the preconditions in cl 1.42 existed; fourth, whether the applicant’s claim properly falls within s 15(2)(b) and (d) of the DD Act, which are the provisions pleaded; fifth, whether in revoking the LSC appointment the applicant was directly discriminated against within the meaning of s 5(1) of the DD Act (which raises issues as to the comparator and causation); sixth, whether the applicant was subject to indirect discrimination (which raises issues as to the conditions, whether they were reasonable, and unjustifiable hardship).

5    As explained in detail below, the application is dismissed.

6    First, the applicant was in an employment relationship within the meaning of the DD Act such as to give this Court jurisdiction to hear his claim under that Act.

7    Second, a proper reading of cl 1.42 of the Guidelines under which the applicant’s LSC status was revoked reflects the result was compelled on the factual preconditions existing.

8    Third, the preconditions in the clause existed. In so far as the clause provides that a request can be made by the Commander that the LSC status continue despite the preconditions existing, no request was made in this case. The Commander was not challenged as to that approach.

9    Fourth, in any event, although the applicant alleges a breach of s 15(2)(b) and (d) of the DD Act, the applicant’s allegations, properly considered, fall within s 15(2)(a). It follows that the claims as pleaded are not established.

10    Fifth, in any event, in the claim for direct discrimination, if the allegations do fall within s 15(2)(b) or (d), the applicant has not established that he received less favourable treatment than a person without his disability in circumstances that are not materially different.

11    Sixth, in any event, in the claim for indirect discrimination, the requirement that a person who has the status of an LSC be able to perform the inherent requirements of that position is reasonable.

12    Before addressing those issues in detail it is first necessary to consider the evidence relied on, the factual background of this application and the relevant statutory regimes.

Evidence relied on

13    The parties helpfully provided a set of agreed facts. The evidence for the most part was not in dispute (accepting that there is an issue as to the interpretation of aspects of the evidence). The document also identified four disputed factual issues, which I address below.

14    The following affidavits, subject to the rulings on the objections, were read by the applicant in support of his application with the exhibits tendered:

(1)    the affidavit of David Kennedy sworn 24 June 2020;

(2)    the affidavit of Kenneth John Ryan sworn 24 April 2020;

(3)    the affidavit of Kenneth John Ryan sworn 17 June 2020;

(4)    the affidavit of Michael Pont dated 30 April 2020; and

(5)    the affidavit of Michael Pont sworn 1 July 2020.

15    The following rulings were made with respect to the applicant’s evidence:

(1)    In the affidavit of Mr Ryan sworn 24 April 2020, in paragraph [3] the words “I commenced employment” were read as the applicant’s understanding; in paragraph [16] the last sentence was not read; in paragraph [18] the words “that authorise my gradual return to work” were read as the applicant’s understanding.

(2)    In the affidavit of Mr Ryan sworn 17 June 2020, in paragraph [11], the last sentence was read as the applicant’s state of mind; paragraph [17] was objected to on the basis of relevance and the applicant conceded it was very general and did not advance the matter; in paragraph [21] the words “despite my Workcover certificates authorising my return to work” were read as the applicant’s state of mind; the last sentence in paragraph [28] was not read; the first sentence in paragraph [30] was not read and it was conceded that the second sentence was merely an interpretation of Dr John McMahon (Dr McMahon’s) report; in paragraph [31] the first sentence was read as limited to the applicant’s understanding of the process that should have occurred.

16    The following affidavits, subject to the rulings on the objections, were read by the respondents with the exhibits tendered:

(1)    the affidavit of Superintendent Paul Glinn affirmed 5 June 2020;

(2)    the affidavit of Martin Alexander Stevenson affirmed 5 June 2020; and

(3)    the affidavit of Teresa Heien affirmed 5 June 2020.

17    In addition to the affidavit material, the applicant tendered the complaint to the AHRC, the agreed statement of facts and the Medical Discharge Standard Operating Procedures. The respondents also tendered a supplement to the expert report of Martin Stevenson which was dated 6 July 2020.

18    The following rulings were made with respect to the respondents’ evidence: in the affidavit of Teresa Heien, the first sentence of paragraph [12] was not relevant; paragraph [17] was not read and the attachment “TH10” was not relied upon.

19    The applicant was cross examined, as was Superintendent Paul Glinn (Superintendent Glinn) and Teresa Heien for the respondents.

20    In addition, three documents were the subject of objection, primarily on the basis of relevance.

21    First, a medical report of Dr Selwyn Smith (Dr Smith) dated 1 March 2012. This report was sought to be relied on by the respondents as evidence that the applicant was unfit to return to his pre-injury duties. This is addressed below at [169].

22    Second, the Police Superannuation Advisory Committee (PSAC) records, sought to be relied on by the applicant for two purposes: first, in relation to the issue of a comparator it was said it reflected the way in which others have been treated in a relevantly similar position for the purpose of direct discrimination; and second, as a comparator for the purposes of direct discrimination. As to the reasonableness of the condition and the unjustifiable hardship defence for the purpose of indirect discrimination. The applicant accepted that it could not assist in respect to the interpretation of the Guidelines. This is addressed below at [232].

23    Third, the material produced under subpoena which was before Dr McMahon, sought to be relied on by the respondents as relevant to the context in which Dr McMahon expressed his views. This is addressed below at [170].

Factual background

24    As noted above, between around 18 May 1984 and 17 December 2015 the applicant was a police officer of the NSWPF. On or around 18 May 1984 he commenced as a Probationary Constable, on 18 May 1985, the applicant was confirmed as a police officer at the rank of Constable, and on 18 May 1993 he was promoted to the grade of Senior Constable.

25    From about April 1990, the applicant was attached to the Forensic Services Group (FSG), and in particular to the Identification Services Branch (ISB). As an officer within that branch the applicant's work involved, amongst other things, fingerprint collection and identification, and the giving of expert opinions about identifications.

26    Around 2002, the applicant was appointed as an LSC. As explained in more detail below, an LSC appointment, at all material times, attracted a higher rate of pay as compared with other Senior Constables of the same rank, grade and incremental level.

27    On 31 May 2009, the applicant was involved in an on-duty motor vehicle accident and as a consequence was certified either totally or partially unfit for work (fit for suitable work on a graded return to work plan) between 1 June 2009 and his medical discharge on 17 December 2015.

28    The applicant was entitled to, and received, paid sick leave under the applicable Police Regulations from 1 June 2009 until 10 September 2015 and paid annual leave from 10 September 2015 until his discharge.

29    Around 17 January 2014, the first respondent initiated a process to have the applicant medically retired from the NSWPF. The applicant's physical and psychological injuries arising from the accident were accepted by the first respondent as being “Hurt on Duty” (that is, as an “infirmity arising from a wound or injury received in the actual execution of the duty of his or her office” under cl 127 of the Police Regulations 2008 (NSW) then in force).

30    Around 13 November 2014, Superintendent Glinn, then Commander of the ISB, wrote to the applicant and advised him of his decision to revoke the applicant's LSC appointment effective 15 January 2015 (the Revocation).

31    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.

32    The letter described that Superintendent Glinn amongst other things, took into account:

(1)    information in a medical report from Dr McMahon dated 4 October 2013 “diagnosing [the applicant] with a number of psychological conditions”;

(2)    information in a medical report from Vesna Boban (Ms Boban), Psychologist, dated 4 December 2013 “diagnosing [the applicant] with a number of psychological conditions”;

(3)    the NSWPF duty of care that the applicant not be returned to duties which “may potentially exacerbate your diagnosed medical conditions”;

(4)    the operational need to fill this “critical training role with a suitable fully operational officer within the Command as soon as possible”; and

(5)    Superintendent Glinn's opinion that the applicant's was unable to meet the FSG Leading Senior Constable Eligibility Criteria, in particular, the criteria “relating to fingerprint technical abilities, skills and knowledge that are outlined below ...”.

33    The letter also amongst other things, observed:

(1)    under the heading "Capacity to maintain positive and professional relationships with customers":

In diagnosing your particular psychological conditions, Dr McMahon states in his report that problems typically associated with persons having the types of injuries [the applicant] has been diagnosed with are:.. problems with attention, concentration and their money. They are apathetic and have difficulty in starting to do things. They experience inertia, massive inhibition, and regression…in Dr McMahon's report, he indicated that [the applicant] felt anxious in new situations or when [the applicant] has to engage in public speaking, or if [the applicant] had thoughts about driving motor vehicles. Having regard to this diagnosis, I am of the view that [the applicant] will not be able to develop or maintain the positive and professional customer relationships expected by this Command, the Forensic Services Group or the NSW Police Force.

(2)    under the heading "Working closely with less experienced Constables and provide support, mentoring and guidance in all aspects of operational situations”:

As a Leading Senior Constable in the Forensic Services Group, [the applicant is] expected to provide situational leadership to more junior fingerprint technicians at complex major crime and incident scenes, including homicides, sexual assaults, and Disaster Victim Identification (DVI) scenes... Given [the applicant's] diagnosed psychological conditions, [the applicant] will clearly not be able to perform this fundamental aspect of the Leading Senior Constable role....

(3)    under the heading "Utilisation as Field Teaching Officer to supplement and support the existing Field Teaching Officers in FSG Sections/Branches":

Due to [the applicant's] stated anxiety issues regarding speaking in public, as per the report of Dr McMahon, and for the reasons outlined immediately above, [the applicant] will also not be able to perform this aspect of the Leading Senior Constable role.

(4)    under the heading "The ability to undertake all duties":

Given [the applicant's] diagnosed psychological conditions, I am satisfied that it is highly unlikely that [the applicant] will be able to undertake all duties required of a Leading Senior Constable in the Forensic Service Group [reference is then made to attending and examining complex major crime/incidents scenes, etc and providing effective situational leadership to [the applicant's] colleagues in each of these particular work environments.

34    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…

35    The applicant continued to hold an appointment as an LSC until it was revoked by Superintendent Glinn, on and from 15 January 2015.

36    Around 1 December 2014 the applicant sought that the Revocation be suspended pending his medical discharge. Around 8 December 2014, Acting Superintendent Atalla advised the applicant in writing that the Revocation would not be overturned or suspended. On around 13 January 2015, the applicant sought a review of the Revocation.

37    Around 15 January 2015, Inspector Rachelle Conroy, Human Resources Manager of FSG, wrote a report rejecting the application for a review and confirming that the Revocation would be effective 15 January 2015. The report observed (amongst other things):

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.

38    A number of further reviews were sought by the applicant and each was rejected.

39    The applicant was medically discharged from the NSWPF with effect from 17 December 2015.

Superintendent Glinn

40    Given the applicant’s submission that the preconditions for revocation did not exist in this case, it is appropriate to refer in more detail to the evidence of Superintendent Glinn.

41    Superintendent Glinn set out background information about the applicant he had obtained from accessing the business records of the first respondent, which has not been challenged.

42    He stated that prior to going on sick leave in June 2009, the applicant was recognised as a fingerprint expert but at that time, he did not hold fingerprint expert accreditation with the Australasian Forensic Field Science Accreditation Board (AFFSAB). In 2012, the Industrial Relations Commission of NSW awarded an additional expert allowance under the Crown Employees (Police Officers) Award 2009 payable to officers of the FSG who held AFFSAB accreditation. Around May 2013, the applicant had considered returning to work for reduced hours so that he could obtain AFFSAB accreditation in order to receive the relevant allowance. On 6 June 2013, Superintendent Keane, then the Commander of the branch, sent the applicant a letter regarding his AFFSAB accreditation application and a direction to provide medical advice to the Police Superannuation Advisory Committee. On 13 January 2014, Acting Superintendent Andrew Sipos, then Commander of the ISB and Manager of the Fingerprint Operations Branch, received an email from the applicant regarding his capacity to recommence duties which enclosed a WorkCover Certificate of Capacity dated 24 December 2013. In July 2014 the 2008 version of the Guidelines were amended to include cl 1.42. I note that reference was made during the hearing to cl 21.2, being the relevant clause in the copy of the draft 2014 Guidelines. Significantly, draft cl 21.2 is in identical terms to cl 1.42 which appeared in the final version of the 2014 Guidelines which employed a slightly different numbering system. As is clear from the extracts above, it appears that in some of the correspondence Superintendent Glinn has referred to the numbering in the draft 2014 Guidelines rather than the numbering employed in the final 2014 version of the Guidelines. It was submitted by the applicant at the hearing that nothing turns on this and the respondents did not submit to the contrary (the provisions being relevantly identical). Accordingly, I have treated the parties’ reference to cl 21.2 as a reference to cl 1.42.

43    Superintendent Glinn detailed the advice sought by various persons as to the applicability of that clause given the applicant had been absent from the workplace since 2009. Around 27 August 2014, he received written advice from Detective (Tech.) Senior Sergeant Rick Sinclair, Fingerprint Operations, regarding the proposal to revoke the applicant’s LSC status which considered the inherent requirements of the LSC position within the FSG and recommended further advice be sought from the Employee Relations & Workforce Policy, HR Command, regarding the proposal to revoke the applicant’s status. He detailed the advice received and the persons who supported that approach.

44    Superintendent Glinn explained that it was his decision to revoke the status, and that his reasons were set out in the letter dated 13 November 2014 sent to the applicant, which is referred to above at [30]. He said that based on the FSG Leading Senior Constable Eligibility Criteria and his knowledge of the role, an 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. At the time he made the decision the applicant had not been in the workplace for approximately five years. There had been substantial changes within the FSG Command Management Framework during that time, including changes to workplace practice and accreditation via AFFSAB and such changes would have required the applicant to undertake a variety of training and proficiency testing over a period of time so that he would have the necessary and up to date skills and expertise required to fulfil the inherent requirements of the role at the relevant time. He said without that training the applicant would not have had the necessary skills to mentor and lead more junior police officers and nor would he have been up to date with the required technical skills and expertise required of the role. He stated that LSCs in the fingerprint discipline within the FSG were also required to undertake both office and field based crime scene response duties. An LSC would be expected to be involved in all facets of training junior staff including delivering face to face presentations and lectures to other police and civilian FSG officers. They would also be required to attend crime scenes with potentially traumatic visual imagery. They were required to oversee, to lead and to provide supervisory skills commensurate with contemporary best practice and scientific examinations processes. Field based attendance also required the applicant to deploy to the crime scene in a police vehicle. He stated that the diagnosis of “Persistent Severe Somatic Symptom Disorder, with Predominant Pain”, and secondary to “Post-Traumatic Stress Disorder” referred to in the medical report of Dr McMahon, led him to consider that the applicant would be unable to deal with some of the more stressful aspects of the role, presumably including attending and providing leadership at major crime scenes (as explained in his affidavit). He also stated that having regard to the relevant medical reports he reviewed, it would appear that such deployment would aggravate the applicant’s current injuries, and potentially expose him to further injury and or relapse of the medical conditions.

45    In cross-examination, Superintendent Glinn accepted in relation to a number of matters that it was a possibility that the applicant could attain a skill with retraining. He also accepted the proposition that it was not uncommon for some retraining or reorientation to be required, but he explained that given the speciality of the LSC role in the branch and the absence from the workplace for five years, that it was different to someone being out of the workplace for a lesser time (for example 12 months) or those involved in general duties. He accepted that the letter of reasons states he had regard to the diagnosis of Persistent Severe Somatic Symptom Disorder with Predominant Pain and secondary to Post-Traumatic Stress Disorder. He was taken to those aspects of the letter which refer to Dr McMahon’s report when addressing specific criteria of the inherent requirements.

46    In re-examination Superintendent Glinn was asked about the retraining and stated, inter alia, that for the applicant to obtain the foundational skill set to be able to work as a fingerprint expert it would include the process that he be authorised or recognised by the AFFSAB which is a process that takes four to six years to go through, with various assessments. He explained that as an LSC the applicant “not only needs to learn the skill but he has got to be able to then use that skill to coach, mentor, guide and train other people”. He explained that having superior technical capacity can be demonstrated by attending major crime scenes. He explained the many changes that have occurred in this area of forensic expertise since 2009, and the many workplace changes, including the digitisation of the workplace and a change to fieldwork “so there was a laboratory set up called the Evidence Recovery Section and they were required not only to undertake fingerprint examinations, but also to undertake recovery of other types of trace evidence such as DNA, hair, tape lifts and similar”, which had occurred as a result of reviews conducted into forensic science and expert evidence.

Disputed facts

47    As noted above, the agreed statement of facts identified that there are four factual disputes.

48    First, whether members of the NSWPF are employees and therefore whether there is an employment relationship between the applicant and either of the respondents for the purpose of establishing a breach of the DD Act. This is a legal rather than factual dispute and is addressed below at [76]-[124].

49    Second, the applicant contended that he was certified as fit to return to work performing restricted duties on a graded return to work plan in or around August 2011, while the respondents contended that between 9 June 2011 and 9 September 2011, the applicant was unfit to work in accordance with a WorkCover NSW Medical Certificate dated 4 June 2011. This is addressed below at [163]-[185] in the context of the broader issue as to whether the necessary preconditions in cl 1.42 existed.

50    Third, the applicant contended that he had never been assessed by a medical practitioner as having any of the permanent impairments imputed to him by Superintendent Glinn as recorded in the letter of 13 November 2014. The respondents disputed that and contended that Dr McMahon in a report dated 4 October 2014 diagnosed the applicant as having met the DSM-V criteria for “Persistent Severe Somatic Symptom Disorder with Predominant Pain” and secondary to “Post-Traumatic Stress Disorder”. The respondents also said that no permanent impairments were imputed to the applicant by Superintendent Glinn. This dispute is interlinked with the issue raised in the preceding paragraph and is also addressed at [163]-[185] below.

51    Fourth, the applicant contended that the revocation was made because of, or for reasons that included, Superintendent Glinn having imputed a disability to the applicant for the purposes of the DD Act. The respondents disputed that and contended that the Guidelines required the first respondent to revoke the applicant's status as a consequence of his inability to fulfil the inherent requirements of an LSC in Fingerprint Operations, ISB, FSG. This dispute is primarily, at least initially, a legal one which involves a consideration of the effect of cl 1.42 of the Guidelines. This is addressed below at [126]-[162].

Relevant legislation

The Police Act, Police Regulations and Guidelines

52    As noted above the applicant was confirmed as a police officer in 1985. It was common ground between the parties that upon the enactment of the Police Service Act 1990 (NSW) (PSA): (a) a person who, immediately before the repeal of the former Act, held office as a member of the Police Force is to be taken to be a police officer appointed to that office under the PSA: schedule 4, cl 6; and (b) a person to whom that schedule applies was (until other provision was duly made under this or any-other Act) to be employed in accordance with the awards, industrial agreements and determinations that would have applied to the person if the person had not become a member of the Police Service and if the Police Force and the Police Department had not been dissolved. I note that the PSA became the Police Act 1990 (NSW) (Police Act) in 2002: Police Service Amendment (NSW Police) Act 2002 No 51 at schedule 1.

53    The long title of the Police Act as at the time of the revocation stated: “An Act to establish the NSW Police Force, to provide for the management of the NSW Police Force and for the employment of its members of staff; and for other purposes”. The NSWPF 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”: s 5.

54    The applicant referred to s 72 of the Police Act which addresses the vacation of non-executive police officer positions to include where he or she “abandons his or her employment in the NSW Police Force”: s 72(1)(e).

55    The applicant also referred to s 85 of the Police Act which 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.

56    The applicant, as a police officer who was confirmed prior to 1 April 1988, was a member of the Police Superannuation Fund established by the Police Regulation (Superannuation) Act 1906 (NSW) (PRS Act).

57    Officers on leave for absences arising from work related injuries are paid sick leave. Clause 127 of the Police Regulations 2008 (NSW) (and later cl 131 of the Police Regulations 2015 (NSW)), provides an officer who was “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.

58    As noted above, the applicant was appointed an LSC in or around 2002.

59    An LSC appointment is not part of the statutory rank and grade structure of the NSWPF: see s 5 and 12 of the Police Act. The position was introduced in 2001 as a result of an agreement between the Police Association of New South Wales, the registered organisation of employees under the Industrial Relations Act 1996 (NSW) that represents sworn police officers in New South Wales, and the first respondent. On 26 April 2001, the Commissioner and the Police Association entered into a Memorandum of Understanding, Appendix D to which addressed the creation of the LSC status and included inter alia that the proposal would be implemented by agreement pursuant to s 86 of the Police Act (now s 87 of the Police Act). On 17 September 2001, the first respondent and the Police Association, pursuant to the then s 86 entered into the formal agreement recognising the appointment. The agreement is entitled “Police Service of New South Wales Leading Senior Constable Agreement” (LSC Agreement).

60    An LSC appointment, at all material times, attracted a higher rate of pay (compared to other senior constables of the same rank, grade and incremental level) under awards made under the Industrial Relations Act 1996 (NSW). At the time of the applicant’s appointment the Crown Employees (Police Officers - 2001) Award, applied to his engagement. Each of the successor Awards continued the concept of an LSC appointment, and continued to entitle those appointed to enhanced rates of pay compared to other senior constable of the same rank, grade and incremental level. At the time of the revocation of the applicant’s LSC and his medical retirement, the Crown Employees (Police Officers – 2013) Award (the Award) applied.

61    In relation to LSC status the Award states, inter alia, that appointments and revocations of LSC status are “subject to provisions duly agreed between the Commissioner and the Association”, which are for present purposes found in a document maintained by the first respondent’s Human Resources area, entitled “Leading Senior Constable Guidelines” (being the Guidelines defined above at [4]). The relevant version is that published in July 2014, which introduced changes to the applicant’s appointment.

62    The Guidelines set out the inherent requirements of an LSC as being, “to work closely with less experienced Constables to provide situational leadership, act as a role model and provide support, mentoring and guidance in all aspects of the relevant operational situation”. The eligibility and selection criteria are detailed, including the inherent requirements for those attached to Specialist Operations Commands, which encompasses the FSG in ISB to which the applicant was attached. Those requirements included extensive knowledge of policies and procedures associated with the relevant Command or Unit; the capacity to maintain positive and professional relationships with the community and other internal/external customers; possessing any appropriate qualifications associated with the status of an expert practitioner within the relevant Command or Unit; the capacity to act as a trainer and mentor to less experienced officers; and any other abilities, knowledge and experience as considered appropriate by the relevant Commander.

63    The Guidelines are considered in detail below, but for present purposes they also relevantly included the following.

64    Under the heading “Appointment of a Leading Senior Constable”:

…

Commanders are to make every effort to expedite the filling of Leading Senior Constables vacancies within their Commands where there are sufficient numbers of qualified officers. Leading Senior Constable opportunities should be filled within two months of expressions of interest being called. An extension of this timeframe would normally only occur where a review has been sought in accordance with these Guidelines, or there has been a delay in obtaining a probity report.

Senior Constables are eligible to apply for Leading Senior Constable opportunities within other Commands in compliance with transfer and tenure provisions. It should be understood that officers generally cannot apply for Leading Senior Constable opportunities within another Command whilst ever Leading Senior Constable opportunities remain available within their Command of attachment.

65    Under the heading “Revocation of Leading Senior Constable”:

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.

…

1.31 Non-performance

Leading Senior Constable status may be revoked for the non performance of the inherent requirements (for instances if a General Duties officer is no longer meeting the inherent requirements as they are no longer consistently rostered to perform first response and /or proactive General Duties policing).

There will be no basis for revoking an officer’s Leading Senior Constable status where they have been deployed in alternative duties at the direction of their Commander and such deployment does not relate to conduct or performance issues. However, Commanders as far as practicable, should limit the period of time Leading Senior Constables are deployed on duties which do not relate to the inherent requitements of their role.

Certain types of leave are not a trigger for revocation. These leave types are detailed under Section 21 Leave.

66    Section 21 there referred to relevantly includes cl 1.42 which 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.

67    Clause 1.5 relevantly provides:

Leading Senior Constables attached to other Field Operations or Specialist Operations Commands or Units are expected to have the following abilities, knowledge and experience:

•    extensive knowledge of corporate policies and procedures;

•    extensive knowledge of policies and procedures associated with the relevant Command or Unit;

•    high standard in brief preparation and presentation (where appropriate)

•    capacity to maintain positive and professional relationships with the community and/or other internal/external customers;

•    possess any appropriate qualifications associated with the status of expert practitioner within the relevant Command or Unit;

•    capacity to act as a trainer and mentor to less experienced officers;

•    any other abilities, knowledge and experience considered appropriate by the relevant Commander.

68    The FSG LSC Eligibility Criteria relevantly provides:

Leading Senior Constables within the FSG are expected to provide situational leadership in the filed with a combination of the following abilities, knowledge and experience:

•    Thorough understanding of the operational aspects of the F.S.G Command Management Framework;

•    Appreciation of specific issues impacting on the nominated Section/Branch;

•    Superior Technical skills;

•    Extensive knowledge of, Specialist Field specifics, FSG and corporate policies and procedures;

•    Extensive experience in brief preparation and court presentation;

•    Extensive knowledge of operational safety issues;

•    Responsibility as a Work Place Assessor for Section/Branch training;

•    Competent with new technologies and the gathering of forensic evidence; and

•    Capacity to maintain positive and professional relationships with customers

Leading Senior Constables will work closely with less experienced Constables and provide support, mentoring and guidance in all aspects of operational situations. Leading Senior Constables will be utilised as Field Teaching Officers to supplement and support the existing Field Teaching Officers in FSG Sections/Branches.

Leading Senior Constables must be able to undertake all duties. Leading Senior Constables opportunities are intended to be provided to those who wish to further their career in FSG in the medium to long term and recognises the importance of operational experience.

DD Act

69    Section 5(1) of the DD Act sets out what is required to be established in relation to direct discrimination and is in the following terms:

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.

70    Section 6(1) of the DD Act sets out what is required to be established in relation to indirect discrimination and is in the following terms:

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.

71    Section 15 of the DD Act is in Part 2, Division 1 which is entitled “Discrimination at work”. That section is entitled “discrimination in employment”. The provision is recited below at [187], but relevantly for present purposes, subsection (2) provides that it is unlawful for an employer, or person acting on behalf of an employer to discriminate against an employee on the grounds of the employee’s disability (a) in the terms and conditions of employment that the employer afford the employee; or (b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or any other benefits associated with employment; or (c) by dismissing the employee; or (d) by subjecting the employee to any detriment. As s 15(2)(b) and (d) are pleaded the inherent requirements defence does not apply: s 21A.

72    “Employment” is defined in s 4 of the DD Act 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.

73    The terms in subparagraphs (c) and (d) are further defined in s 4 of the DD Act.

74    “Commonwealth employee” is defined to mean a person who:

(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).

75    The expression “instrumentality of a State” means a body or authority established for a public purpose by a law of a State and includes a local government body: s 4 of the DD Act.

Employment relationship

76    The first, and a critical issue, is whether the first respondent, or alternatively the second respondent, is “an employer or a person acting…on behalf of an employer” within the meaning of s 15 of the DD Act. If not, the DD Act does not apply to the applicant and his application must fail.

77    This issue has not previously been addressed, although it appears that there have been other cases involving a complaint of discrimination taken by a NSW police officer against the NSW Commissioner of Police under Commonwealth legislation in which the issue has not been considered: for example: Trindall v NSW Commissioner for Police [2005] FMCA 2; Philip v State of New South Wales [2011] FMCA 308.

78    To resolve this issue attention is necessarily directed to the terms of the statute.

79    Statutory construction must begin with the text itself: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 (Alcan) at [47] per Hayne, Heydon, Crennan and Kiefel JJ. While the language employed is the surest guide, its meaning may require consideration of the context which includes the general purpose and policy of the provision: Alcan at [47] per Hayne, Heydon, Crennan and Kiefel JJ citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky) at [69] per McHugh, Gummow, Kirby and Hayne JJ; in particular the mischief it is seeking to remedy. More recently it has been emphasised that the starting point for ascertaining the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is to be had to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] per Kiefel CJ, Nettle and Gordon JJ, citing Project Blue Sky at [69]-[71]; Alcan at [47]; Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; (2020) 381 ALR 601 at [14].

80    As the applicant correctly submitted the correct question is the meaning of employment in the DD Act and the starting point remains the text of the provision.

Submissions

81    In essence, the applicant contended he fell within the definition of “employment” in the context of the DD Act. The applicant submitted that the correct question was the meaning of employment in the DD Act which was to be determined by the application of the principles of statutory interpretation rather than commencing with the common law. Referring to the provisions of the DD Act and authorities which have considered the position of a police officer in other not dissimilar contexts, the applicant submitted the DD Act uses the term “employment” at least to include employment in the ordinary sense so as to refer to a person who is paid for performing work on a regular basis and at the direction of another. On the other hand the respondents submitted that there was no employment relationship at common law between a police officer and the Commissioner (as police officers are appointed) and nothing in the DD Act changes that position. To explain the common law position, the respondents referred to State of New South Wales v Briggs [2016] NSWCA 344; (2016) 95 NSWLR 467, in particular at [50] ff. It submitted that the ordinary meaning of employment refers to the existence of relationship between an employer and an employee engaged under a contract of employment: see Broadlex Services Pty Ltd v United Workers' Union [2020] FCA 867; (2020) 296 IR 425 at [25]-[27], [61]-[75]. The respondents submitted that the word “includes” in the definition of employment should be interpreted as “means”, so that the definition is extending the common law meaning. The respondents accepted that the NSW Police Commissioner and senior executive police officers who are engaged on contract because of their positions by virtue of the Police Act, would however, be covered by the definition and therefore protected by the DD Act.

82    The applicant placed significant reliance on the decisions of Konrad v Victoria (1999) 91 FCR 95 (Konrad), Commissioner of Police v Estate of Russell [2002] NSWCA 272; (2002) 55 NSWLR 232 (Russell), and Police Service of New South Wales v Honeysett [2001] NSWCA 452; (2001) 53 NSWLR 592 (Honeysett) to illustrate what he contended is the ordinary meaning of employment, and that in certain circumstances, police officers have been held to be employees.

83    As the respondents correctly pointed out care needs to be taken in considering the authorities relied on by the applicant as each is dealing with a different legislative context. So much is plain from a consideration of the decisions.

84    In Konrad the appellants were officers in the Police Force of Victoria who challenged their dismissals in proceedings brought under Div 3 of Pt VIA of the Industrial Relations Act 1988 (Cth). The meaning of employee in that case was considered in the context where the object of the Division was to give effect to an international convention (the Convention Concerning Termination of Employment at the Initiative pf the Employer 1982) to which Australia was a party: s 170CA(1). The Division provided that “[a]n employer must not terminate an employee’s employment unless there is a valid reason … connected with the employee’s capacity or conduct or based on the operational requirements of the undertaking, establishment or service”: s 170DE(1) and that an employer must not terminate an employee’s employment by reason of the employee’s physical disability: s 170DF(1)(f). Although the Division did not contain any definitions of the terms “employee” or “employer”, s 170CB provided that an expression in the Division had the same meaning in the Division as it did in the Termination of Employment Convention. The Convention referred to the terms “workers” and “employed persons” (but were not defined). As a consequence, Finkelstein J at [42]-[104] addressed inter alia, the issue of whether, on the proper construction of the Industrial Relations Act 1988 (Cth) in light of its intention to give effect to the Termination of Employment Convention, a police constable was an “employed person” to whom the Convention, and therefore the Act, is intended to apply.

85    In the above context, in Konrad, Finkelstein J said at [100]-[104]

[100]     Returning to the question whether the employee who is referred to in Division 3 is a common law employee it is necessary, in my view, to have regard to the following matters. First, provisions such as are to be found in Division 3 should not be given a narrow construction. Division 3 is in the nature of a human rights code and should be given an interpretation that will advance its broad purposes. It is not appropriate to minimise the rights conferred by this type of legislation and so diminish its proper impact: compare Canadian National Railway Co v Canada [1987] 1 SCR 1114 at 1134 per Dickson CJ; Ontario Human Rights Commission v Simpson Sears 1985 CanLII 18 (SCC); [1985] 2 SCR 536 at 547 per McIntyre J.

[101]    Second, there has been much informed criticism of the common law notion of employee…

[102]    Third, remembering that the purpose of Division 3 is to give effect to the Convention, in the absence of a clear indication to the contrary, the Division should not be construed more narrowly than the Convention. In that regard there can be no doubt that the expressions "employed person" and "worker" in the Convention do not bear their common law meaning. The overwhelming majority of States who adopted the Convention are not common law countries. There can also be no doubt that the Convention intended to include public employees within its scope. Further, it follows from the fact that all public employees are covered by the Convention, that the Convention is not concerned to distinguish between holders of public office on the one hand and public employees on the other.

[103]    In my view, bearing the foregoing factors in mind, I can see no reason why the word "employee" when used in Division 3 should be confined to its common law meaning. If it was so confined, it would bring about the following unintended consequences. In the first place, it would exclude from the operation of the Division persons who are just as vulnerable and in need of protection as common law employees. In the second place, adopting a narrow meaning of the word "employee" would place Australia in breach of its obligations under the Convention which it has ratified. In the third place, a narrow construction of the word "employee" would defeat the object of the Division which is to give effect to the Convention.

[104]    In the context of Division 3 it is my view that, speaking generally, an employee is a person who performs work or labour (personal services) for another; that is to say, a person who sells his labour and not the product of his labour. Further, once it is accepted that the common law meaning of the word "employee" does not control Division 3, in my opinion it necessarily follows that a constable is an employee who is entitled to the protection of the Division. In almost all respects a member of the police force is in the same position as any other employee of the Crown. He is subject to the direction and control of the Crown, although he acts "independently" in the manner in which he carries out certain duties. He is paid a regular wage and makes no profit. He is provided with equipment needed to carry out his duties. His position, nowadays at least, is permanent. He is entitled to holidays, sick leave and other entitlements afforded generally to employees.

86    It followed therefore, that “employee” in the Industrial Relation Act 1988 (Cth) was not confined to its common law meaning, and that police officers in the State of Victoria were employees within the meaning of that legislation.

87    In Russell the New South Wales Court of Appeal considered a question of law referred to that Court which necessitated a consideration of the meaning of the word “employee” for the purpose of the Anti-Discrimination Act 1977 (NSW), and whether a police officer is an employee of the Commissioner of Police. Mr Russell, who was an Aboriginal man who had died, had been the victim of unlawful racial discrimination and racial vilification perpetrated by a group of New South Wales police officers. The Anti-Discrimination Act, defined employment as “includes work under a contract of services”: s 4. The provision considered in the proceedings was s 53 of the Anti-Discrimination Act, which relevantly stated that “[a]n act done by a person or agent or employee of the persons principal or employer which is done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of that act, authorise the agent or employee, either expressly or by implication, to do an act”: s 53(1). The Court concluded that for the purposes of the Anti-Discrimination Act, the word “employee” should not be narrowly read such as to confine it to situations in which there is a contract of employment, but that it extended to the situation of a police officer.

88    Spigelman CJ gave the judgment for the Court with Stein JA and Davies AJA agreeing. Spigelman CJ described the relevant arguments before the Court at [79]-[82]:

[79]    Counsel for the Appellants supported the approach to construction of s53 adopted by Sully J. As I have indicated above, his Honour read the words “Commissioner of Police” in place of the word “employer” in s53. This left the word “employee” unaffected. In this Court, the Appellants supported his Honour’s assumption that the word “employee” in s53, and elsewhere in the Anti-Discrimination Act, is to be understood as a legal concept identifying a particular common law relationship. It is extended to encompass independent contractors, by the definition of “employment” to including “work under a contract for services”, but the statute did not, it was submitted, otherwise affect the common law concept.

[80]    As indicated above, there are a number of categories of members of the Police Service of New South Wales. Some of the categories are expressly stated to be employees. All members of the Senior Executive Service must enter into a contract of employment. The Police Service Act, notably, does not treat police officers as being subject to a contract of employment. It was this differentiation which, to a substantial degree, caused Sully J to conclude that the traditional common law position has not been altered by the Police Service Act.

[81]    The issue, however, is not one of construction of the Police Service Act directly. The issue is the meaning of the word “employee” in the Anti-Discrimination Act 1977, particularly after its amendment in 1997 to include s4B. Whether a word such as “employee” is used in a technical legal sense depends on the construction of the specific statute in which it appears.

[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.

89    In reaching its conclusion the Court referred to Honeysett which was delivered subsequent to the decision of the primary judge in Russell. Spigelman CJ observed at [83]-[86]:

[83]    Subsequent to the decision of Sully J, a similar issue arose in this Court in Police Service of New South Wales v Honeysett, supra. The Police Service paid workers compensation to a passenger of a car driven by a police officer. It brought an action against the officer for indemnification. Pursuant to s3 of the Employees Liability Act 1991 the police officer would have been liable to indemnify the Service if she was not an employee. That section commences with the words: “If an employee commits a tort for which his or her employer is also liable …”.

[84]    Priestley JA, with whom Ipp AJA and Sperling J agreed said:

“[22]    The Police Service Act in my opinion shows a use of the idea of employment in its ordinary sense running in parallel with a recognition of the continuing office of constable as an office that can be exercised simultaneously with an employment relationship existing between the Police Service and the police officer. This seems to me to be a realistic recognition of the fact that the range of duties a police officer may be required to fulfil pursuant to the Police Service Act appears to be at least potentially and I would think almost certainly in practice, much wider than the range of duties required by the office of constable.”

[85]    His Honour also said:

“[30]    The Police Service Act shows that in many ways the conditions of service of police officers had been substantially assimilated to those of ordinary employees; the Workers Compensation Acts have shown the same development as have various Acts regulating industrial relations. The fact that some of these Acts, preceding the Police Service Act, only apply to police officers by virtue of deeming provisions does not detract from the factual situation that has now been reached that in virtually every way police officers are treated statutorily as employees and, in the Police Service Act, in 1990, were treated as employees in an undefined sense.

[31]    When those considerations are taken into account with the strong purpose behind the Employees Liability Acts of ensuring that persons in the position of employer should not be able to pass on to persons in the position of employees liabilities incurred by the employers as a result of things done by employees in the course of their employment, it seems to me that the word employee in s 3 of the Employees Liability Act 1991 should not only be read as including police officers working (to use a neutral term) for the Police Service pursuant to the Police Service Act but in fact means a class of persons including police officers working pursuant to that Act.”

[86]    A similar conclusion was reached by the Full Court of the Federal Court of Australia in Konrad v Victoria (1999) 91 FCR 95 where the issue is whether a member of the Victorian Police Force was an employee for the purposes of Div 3 Pt VI A of the Industrial Relations Act 1988 (Cth). The scope and purpose of the Act there under consideration led to the result that police officers were held to be employees for purposes of that legislation (see especially at [13]-[15], [59], [100] and [104]). The intent of the legislation was that it applied to “all workers” (at [14] and see [59] and [104]).

90    Spigelman CJ referred to the Anti-Discrimination Act and observed at [87]-[88]:

[87]    In the statute presently under consideration, the word “employee” appears in each of the provisions of the Act rendering it “unlawful for an employer to discriminate against an employee” on the relevant ground, in the present case, race. For beneficial legislation, such as the Anti-Discrimination Act, a liberal interpretation is appropriate. This is reinforced by the purposive approach required by s 33 of the Interpretation Act 1987. (See IW v City of Perth (1997) 191 CLR 1 esp at 11-12, 18, 22-23, 58.)

[88]    Nothing in the scope and purpose of the Act suggests that it should be limited to persons subject to contracts of employment, even with the specific statutory extension to include work under a contract for services. Insofar as persons do “work” in a context closely analogous to “employment”, the purpose of the legislation would be better served by extending the protection of the Act to such a relationship. There must be some element of regularity and permanence in the relationship, and also an element of direction and control of work, for it to fall within an extended sense of the word “employment”. But where such context exists, the Court should be slow to hold that the Act has no application.

91    The consequences of the appellant’s submission were addressed at [89]-[91]:

[89]    …Accordingly, on the submissions for the Appellants in this case, the only members of the Police Service who would not be covered by the protection of the Anti-Discrimination Act, in the sense that they could complain about discrimination against them in work, are police officers. This is a most unlikely result, particularly after the enactment, in 1997, of s 4B.

[90]    Appointments to the Senior Executive Service and appointments to non-executive positions of commissioned police officers are made by the Governor on the recommendation of the Police Board. (See s 36(1) and s 64(1)(a) of the Police Service Act.) Appointment of constables, sergeants and administrative officers are made by the Police Commissioner. (See s 64(1)(b).) It is the Commissioner who is denoted as the relevant “employer” by the 1997 amendments of the Anti-Discrimination Act. This is no doubt a reflection of the Commissioner’s authority over the whole of the Service, established by s 8 of the Act, quoted above. It would be an extraordinary anomaly if, as the Appellants contend, the Commissioner was deemed to be the employer under s 4B for the purposes of the Senior Executive Service, whom he does not appoint, but is not such an employer for purposes of the non-commissioned officers, whom he does appoint.

[91]    Counsel for the Appellants also accepted that it was a necessary consequence of the construction for which he contended that if a member of the Senior Executive Service committed a discriminatory act against a third party, the Commissioner of Police could be held liable under s 53. However, no such consequence would flow in the case of police officers. This is another anomaly which is unlikely to have been intended.

92    There were a number of textual indications also said to support that the word employee ought to be given a narrow construction, including that the word employee appears most frequently in the context of reference to work: at [92]. Spigelman CJ did place “particular significance” on the language of s 4B: at [93]. He also concluded that the purpose served by the various sections which referred to employee would be best served if the meaning were not confined. Section 4B in the Anti-Discrimination Act provided inter alia, that a reference in that Act to employer in relation to employment in the Police Service is a reference to the Commissioner of Police, and anything determined or done with respect to any such employment by an officer or employee in the Police Service who is authorised to determine and do things in that respect is taken to have been determined or done by the Commissioner of Police.

93    As the respondents submitted, there is no such equivalent provision in the DD Act.

94    In relation to Honeysett, the applicant relied inter alia on the reasoning of Priestley JA referred to above, and the reference to the second reading speech of the Police Act, with the conclusion at [28]-[32] that it reflects that in ordinary language usage there is no difficulty in understanding that police officers are employees and that it supports the view that that ordinary language usage is carried into the PSA itself. In that regard it is also appropriate to refer to the Court’s reasoning at [21]-[22]:

[21]    Part 6 which provides for “Non-executive officers of the Police Service” uses somewhat different language and its provisions, looked at in isolation, could be regarded as equivocal in regard to the employment question I am now considering. That equivocation is lessened by the heading of Pt 8: “General provisions relating to employment of all members of the Police Service”. Although Pt 8 does not itself use the word employment, the situations it deals with and the prescriptions it lays down for members of the Police Service are all consistent both with the heading and with the idea that members are employees, who may at the same time hold the public office of Constable.

[22]    The Police Service Act in my opinion shows a use of the idea of employment in its ordinary sense running in parallel with a recognition of the continuing office of constable as an office that can be exercised simultaneously with an employment relationship existing between the Police service and a police officer. This seems to me to be a realistic recognition of the fact that the range of duties a police officer may be required to fulfil pursuant to the Police Service Act appears to be at least potentially and I would think almost certainly in practice, much wider than the range of duties required by the office of constable.

95    The applicant contended that a consideration of the Police Act itself bears that out. In particular, reference was made to the preamble (recited above), the composition of the police force: s 5 (recited above), Part 6 which addresses non-executive police officers and refers in instances to employment: for example, s 72, and that the Commissioner is 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: s 85. It was submitted that these features are reminiscent of the features discussed in Honeysett. In so far as the applicant’s submission was based on s 85 creating an employment relationship, it appears to have been advanced as an alternative argument.

Consideration

96    At common law members of the police force are not engaged as employees but are independent office-holders exercising original authority in the execution of their duties: Enever v The King (1906) 3 CLR 969 at 982; Attorney-General for New South Wales v Perpetual Trustee Co Ltd (1952) 85 CLR 237; Attorney-General for New South Wales v Perpetual Trustee Co Ltd (1955) 92 CLR 113 at 122, 129; Sheikh v Chief Constable of Greater Manchester Police [1990] 1 QB 637 at 643. A police officer is required to take an oath or affirmation of office to keep and preserve the peace and to discharge his or her duties faithfully according to law: s 13 of the Police Act; cl 17 of the Police Regulation. Non-executive police officers do not have employment governed by a contract of employment. This is to be contrasted with the Commissioner, NSWPF senior executives and administrative officers: s 27(1), ss 32-42, ss 81-81G.

97    That said, those authorities referred to above at [81]-[95] reflect that police officers have been held to be employees within certain statutory regimes. It follows that those statutory regimes, in so far as they relate to employment, have not applied the common law concept of the term.

98    Accepting that at common law a police officer does not fall within the definition of employee, as a general observation, a consideration of the Police Act reflects, for the reasons the applicant submitted above, that it uses the notion of employment in the ordinary sense of the meaning (being paid for performing work on a regular basis at the direction of another), treating police officers as employees. The descriptions in Konrad and Russell to that effect are apt. This is particularly so in relation to matters which might typically be regarded as characteristic of employment for example, conditions of service and industrial matters. Added to that, I observe in passing, the Guidelines in issue in this application also refer to police officers as employees, and that they are engaged in employment. That is to not to deny that a police officer has duties to perform which derive directly from the law and require individual judgment.

99    It is necessary to return to the DD Act as the text of the relevant provision, the definition of employment, is the starting point for ascertaining its meaning, having regard to its context and purpose. A number of observations may be made.

100    First, the DD Act is beneficial legislation. The objects of the DD Act are inter alia, to eliminate, as far as possible, discrimination against persons on the grounds of disability in a number of areas, one being work: s 3(a)(i). The objects also include ensuring, as far as practical, that persons with disabilities have the same rights to equality before the law as the rest of the community and to promote the recognition and acceptance within the community that persons with disabilities have the same fundamental rights as the rest of the community: s 3(b) and (c). Beneficial and remedial legislation is to be given a liberal construction, although a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural: IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 11-12, 22-23, 58. That “beneficial legislation is to be construed beneficially is a manifestation of the more general principle that all legislation is to be construed purposively”: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; (2016) 260 CLR 232 at [92] per Gageler J, and see Acts Interpretation Act 1901 (Cth). Accordingly, the task remains one of statutory construction.

101    Second, there is no definition of “employee” in the DD Act, rather there is a definition of “employment” as recited above at [72]. That definition uses the term “includes”, and thereafter refers to four items. Not included in those items are all the circumstances that are encompassed by the common law definition of employment, although subparagraph (a) would be covered by that definition. Subparagraphs (b)-(c) could be seen as relating to circumstances which are not, or may not, be covered by the common law concept. That, as explained below, is readily apparent from the terms of this definition, but also by additional definitions of the terms encompassed in (b)-(d).

102    Third, the use of the term “includes” is ordinarily intended to enlarge the ordinary meaning of the word being defined. This is to be contrasted with “means” which tends to reflect that the definition is exhaustive.

103    This was a point conveniently summarised in Caltex Australia Petroleum Pty Ltd v Commissioner of Taxation [2019] FCA 1849 at [27]:

[27]    The word “including” in a definitional clause can serve a number of different functions. Ordinarily, where “includes” is used in a statutory definition it may have either or both of two functions: to extend the ordinary meaning of the particular word to bring within the scope of the meaning of that word something that otherwise would not be encompassed by it (Re Gray; Ex parte Marsh (1985) 157 CLR 351, 364–365; [1985] HCA 67 at [18]; Zickar v MGH Plastic Industries Pty Limited (1996) 187 CLR 310; [1996] HCA 31); and/or to avoid possible uncertainty as to whether something may come within the definition by expressly providing for its inclusion (Corporate Affairs Commission (SA) v Australian Central Credit Union (1985) 157 CLR 201, 206–207; [1985] HCA 64 at [5]; BHP Billiton Iron Ore Pty Ltd v National Competition Council (2008) 236 CLR 145, 159; [2008] HCA 45 at [32]). The word “includes” 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, 398–399, 402. See also Pearce DC and Geddes RS, Statutory Interpretation in Australia (8th ed, LexisNexis Butterworths, 2014) at [6.60]–[6.63].

104    It will be recalled that the applicant submitted that the text is inclusive and refers to the ordinary meaning of the word while the respondents contended the starting point was the common law, and that the definition extended the common law. In that context, the respondents submitted that “includes” in the definition of employment should be construed as “means” in this section, relying on YZ Finance Company Pty Ltd v Cummings (1964) 109 CLR 395 (YZ Finance). The respondents contended the definition is for clarification and expansion and that the definition is exhaustive.

105    YZ Finance does not assist the respondents’ submission. There the issue was whether a promissory note fell within the definition of security in the Moneylenders and Infants Loans Act 1941 (NSW). The definition of security in the Act included a number of items, but not a promissory note. This is in the context where, if the term security was not defined but its ordinary meaning applied, a promissory note would fall within that concept. Each of the matters listed in the definition would also have fallen within the ordinary meaning of the word. In that context, and considering the whole of the Act, a majority of the High Court concluded that notwithstanding the use of the word “includes”, the definition was exhaustive. In doing so the High Court noted the inconsistent use of the terms “includes” and “means” throughout the Act.

106    Although a number of authorities consider the meaning of “includes”, they reflect that its meaning depends on the terms of the provision, considered in context.

107    It was accepted, as noted above, that the definition of employment in the DD Act does not include all forms of employment that would fall within the definition at common law, yet it includes subparagraph (a) which would fall within common law understanding of the term. The definition therefore could not be exhaustive. The definition also includes circumstances which expand the concept of employment as may be understood at common law. Therefore, it follows that the definition is not just listing those circumstances in addition to those recognised at common law. Moreover, the definition provision in s 4 uses the word “means” in respect to most of the words or phrases that are defined therein. The use of “includes” in the definition of “employment” is in contrast to that.

108    Fourth, in that context, the definitions in subparagraphs (c) and (d) are very broad. As to Commonwealth employees, subparagraph (c) includes categories of persons who would not fall within the common law definition of employment because of the nature of their appointments, including the police and members of the defence forces. That said, I note that in relation to the Australian Federal Police, the Australian Federal Police Act 1979 (Cth) does designate its police officers as employees. Nonetheless, as can be seen by the definition and the various categories listed, the definition is expansive, including people employed, holding office, appointed or being a member of a specified organisation. All persons within that definition are employees, and in employment as defined in the DD Act, for the purposes of the DD Act.

109    Subparagraph (d) considered in context, is similarly broad.

110    The respondents attempted to draw a distinction between the terms used to describe a Commonwealth employee and that used in respect to a State instrumentality. It was submitted that (d) is qualified by the use of the word employee. No definition of state employee is provided, only the meaning of instrumentality of the State. That definition is also expansive.

111    The respondents submitted that the definition of employment reflects that Parliament has turned its mind to the circumstances where employment would be extended outside the standard common law employment notion. It was submitted therefore, that by Parliament specifying those circumstances (for example, in the definition of Commonwealth employee where appointment to public office and membership of a discipline force would constitute an employment relationship), then any omission to specify such circumstances (for example in relation to (d)) must, by necessary implication, mean that the circumstance does not fall within the definition. It followed, so the respondents submitted, that “[t]his indicates that Parliament carefully drafted the definition of employment to be exhaustive in codifying the circumstances where it was intended to apply outside the standard definition of employment”.

112    When that definition in (d) is read in context, which includes that the term “employee” is also used in respect to Commonwealth employees (in (c)), that submission does not hold true. Commonwealth employee is thereafter defined in broad terms. It cannot be taken from the definition of employment, that the use of the word “employee” in (d) was intended to limit or qualify those persons covered by the DD Act, excluding people based on the nature of the work in respect to the State or an instrumentality of the State. This interpretation placed on the definition by the respondents would mean that while the DD Act covers in its operation employees of the States or an instrumentality thereof, it would exclude some people who, if working with the Commonwealth equivalent organisation, would be covered. There appears to be no logical reason why that would be so having regard to the purposes of the DD Act discussed above.

113    The respondents accepted that based on the Police Act a police officer is working for the State or an instrumentality of a State. The issue was rather whether that is as an employee, or some other arrangement under that legislation. In that context the respondents also accepted that the executive of the Police Force and the administrative staff of the NSWPF would fall with the definition in (d) and therefore be covered by the DD Act.

114    Although the respondents submitted that the NSWPF would be covered under the State Anti-Discrimination Act by virtue of s 4B, and that Commonwealth Parliament may well have decided to exclude such persons and left it to the State Anti-Discrimination Act by preserving the concurrent operation of the State legislation, there seems to be no reasonable basis why that would be so.

115    That respondents’ interpretation would lead to the perverse consequence that some in the NSWPF are covered by the DD Act, yet the non-executive members, the sworn police officers, are not. An interpretation with that result could not have been intended. An interpretation of the DD Act which supports the purpose of the legislation is to be preferred over one which leads to such perverse results.

116    Moreover, the respondents’ submission is based on the premise that the common law definition of employment underpins the statutory definition, yet, for the reasons already given, there is sufficient textual indication that reflects that the term is not being used in that manner. The definition includes matters not within that common law concept which supports the conclusion that the word employee is not being used in that confined sense.

117    A consideration of the text of the definition of employment, considered in its context and having regard to the purpose of the DD Act, tends to the interpretation that (d) is to be broadly interpreted and not confined in the manner contended by the respondents.

118    Fifth, the circumstances of the conduct to which s 15 is directed applies to persons who fall within the ordinary meaning of employment, and not simply those who satisfy the common law concept. This provision is in Division 1, which is entitled “discrimination in work”: see Russell at [92]. As noted above at [113], the respondents accepted that police officers work for a State instrumentality. As illustrated above, the Police Act reflects that the police officers do work for a State instrumentality, and the Act uses the notion of employment in the ordinary sense of that meaning.

119    Sixth, the DD Act is intended inter alia, to give effect to Australia’s obligations under the Discrimination (Employment and Occupation) Convention 1958 of the International Labour Organisation and the Convention on the Rights of Persons with Disabilities 2007: s 12(8) DD Act. As the applicant submitted those Conventions are framed to apply broadly to prevent discrimination in all forms of work, occupation and employment: see for example, the discussion in Konrad. The Conventions are capable of being taken into account inter alia, 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 the provision when it is ambiguous: s 15AB, Acts Interpretation Act 1901 (Cth); Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 287. Unlike the legislation considered in Konrad, the DD Act does not refer to the words having the same meaning as in the Convention. Nonetheless, the discussion in Konrad which reflects the breadth of the application of the Convention, supports the contention that the broad interpretation of the definition in the DD Act (if the text permitted) would more properly give effect to Australia’s obligations under the Conventions.

120    Against the background of those observations a number of other submissions can be addressed.

121    The respondents’ submission commenced with the proposition that a consideration of the definition commences with the common law. That was said to be because employment is a common law concept. That latter proposition is plainly correct in so far as it has a meaning at common law. However, it does not follow that the task of considering the statutory meaning is to be approached in that manner. Rather, as explained above, the task commences with the text, considered in context and given the underlying purpose of the legislation.

122    This is in the context where it is also correct that “employment” has, what can be described as an ordinary meaning, different to and broader than the common law meaning.

123    The better view is that the definition clarifies the circumstances identified as falling within the concept of employment, it not being an exhaustive definition. There are a number of textual indications as reflected in the observations above, that the definition favours the meaning being its ordinary meaning. The breadth of the definition of employment appears to encompass what would ordinarily be understood in the ordinary sense of the word, to refer to a person who is paid for performing work on a regular basis and at the direction of another. This interpretation plainly promotes the purpose of the DD Act. It encompasses persons, (in this instance, a State police officer) who perform work within the ordinary meaning of that word and avoids the perverse result of them being excluded from the legislative scheme on the basis of the technical nature of the relationship. Given the purpose and breadth of the legislation, there is no basis to infer that such persons were intended to be excluded. There is no basis in the text of the provision, considered in context and in light of the underlying purpose of the DD Act to restrict the application of the Act in the manner contended for by the respondents.

124    Accordingly, the applicant was an employee for the purposes of the DD Act. It follows that he can bring a claim under the DD Act and that this Court has jurisdiction to hear the matter.

125    As noted above, the applicant amended the Statement of Claim to include the State of New South Wales. The applicant brought these proceedings against the Commissioner based on s 85 of the Police Services Act. The amendment was made by the applicant prior to the hearing an issue arose as whether based on s 5 of the Crown Proceedings Act 1988 (NSW), the State was the appropriate party. Given my findings below nothing turns on this.

Unlawful discrimination – the operation of cl 1.42

126    The applicant contended that he was the subject of direct discrimination in that the revocation of his LSC appointment occurred because of or for reasons that included he had, or was imputed to have, a disability arising from a psychological disorder or disorders, and that this amounts to direct discrimination under s 5(1) of the DD Act. This involves establishing that the applicant was treated less favourably than a person without a disability in circumstances that are not materially different and that that treatment was because of the disability: s 5(1) DD Act. In the alternative the applicant contended the terms of the Guidelines adopted by the first respondent in 2014 and applied by Superintendent Glinn in making the decision to revoke the LSC appointment indirectly discriminated against him as a person with a disability: s 6(1) DD Act. As put by the applicant, his complaint in this matter “is to a particular voluntary decision made by the Superintendent Glinn…to revoke the applicant’s Leading Senior Constable Appointment”.

127    The respondents submitted that the answer to both claims is that the Commissioner did not take any action capable of constituting direct or indirect discrimination. It was submitted that in both the case of direct and indirect discrimination the Commissioner must take action (by treating a person or requiring compliance with a requirement or condition) for unlawful discrimination to occur and that no such action took place in this case. This was said to be because the source of the obligation to revoke the LSC status is the Guidelines which is an agreement made under s 87 of the Police Act and has been incorporated into the Award enforceable under the IR Act. Therefore, the Commissioner did not take any positive action to treat the applicant less favourably than a person without a disability (for the purposes of direct discrimination) or impose a requirement or condition (for the purposes of indirect discrimination) relying on New South Wales v Amery [2006] HCA 14; (2006) 230 CLR 174 (Amery) at [80]-[81]; [205]-[207]. The respondents submitted that the circumstances mandating the revocation of the LSC status under cl 1.42 of the Guidelines formed part of the terms and conditions for ongoing appointment inherent in the nature of the role referring to Clymo v Wandsworth London Borough Council [1989] IRLR 241; Howe v Qantas Airways Ltd [2004] FMCA 242; (2004) 188 FLR 1; McDougall v Kimberly-Clark Australia Pty Ltd [2006] VCAT 2211; and Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261.

128    It is clear that the submission based on Amery is predicated on an interpretation of the Guidelines, such that the Commissioner did not take any action. Rather, as it was put during the hearing, the consequence of revocation was compelled as a result of cl 1.42 and no decision was made by the Commissioner.

129    It is appropriate first to consider Amery on which these arguments are based. There the High Court considered a claim of indirect discrimination in a context where female casual school teachers claimed their pay rates were adversely affected by their gender as their family responsibilities prevented them from becoming permanent teachers. The female casual teachers were therefore not able to progress to higher salaries under the relevant award which were available to permanent teachers. They contended, to establish the first element of indirect discrimination that the Department of Education and Training had imposed as a condition of their being able to access particular levels of pay of the common incremental salary scale a requirement that they obtain appointment as permanent full-time or part-time teachers. The High Court examined the terms and conditions on which casual teachers were employed. This required attention being paid to the rights and obligations of each category of teacher, permanent and casual. The High Court concluded that it was the characterisation of the teacher as casual or permanent that gave rise to the difference, and that they could not all be treated as teachers. The High Court concluded that the exclusion of the female casual teachers from those particular levels of salary increase arose because the Department was complying with the terms of the relevant industrial award, and that with the practice of not making over award payments to casual teachers was an incident of the structure of the management of the workforce structure imposed by the Teaching Services Act 1980 (NSW). The plurality at [79]-[82] observed:

[79]    The immediate consequence of focusing upon the terms and conditions attendant upon the employment of the respondents as casual teachers is that the incongruity alluded to previously in these reasons becomes fatal to the respondents' case. It cannot be said to be a requirement or condition required to be complied with in the terms and conditions of employment as a casual teacher that, in order to obtain levels of pay corresponding with levels nine to 13 of the common incremental salary scale, the employee must cease to be a casual teacher.

[80]    Nor can it be said to be a requirement or condition, compliance with which is required in the terms on which one is offered employment as a casual teacher, that, in order to access those higher levels of pay, the employee must accept appointment as something other than a casual teacher. This last proposition is sufficient to deny any application to the situation of the respondents of s 25(1)(c), which proscribes discrimination on the ground of sex in the terms on which an employer offers another person employment.

[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. For the reasons given above, the so-called requirement of permanence which the respondents sought to impugn was not such a requirement or condition within the meaning of the AD Act. The Tribunal's decision was thus infected by an error of law and should not have been reinstated to any degree by orders of the Court of Appeal. For that reason, the appeal should be allowed.

And see Callinan J at [205]-[208].

130    From that the respondents contended that the applicant had his LSC status revoked by virtue of the nature of his appointment which was regulated by an industrial agreement that was binding under s 87(3) of the Police Act.

131    In that context, the applicant submitted that the respondents’ argument could only apply if the revocation was mandatory or automatic, for if not, the Commissioner was required to make a decision. Although such terminology was used at various times during the hearing, the respondents’ ultimate position is more accurately described not as contending that the revocation applies automatically, but “that it compels a result. That is, that a decision maker can only make one decision, and there is a very fine distinction to be made. But it still supports our primary position that this is a result dictated by the agreement. It’s not one which is as a result of.....discretion or judgment made by Superintendent Glinn”. Given aspects of the respondents’ submission, the applicant referred to the approach to construction of an industrial agreement, and submitted that the Guidelines fall far short of such an agreement. The applicant submitted that an overly technical approach ought not to be taken to the interpretation of the Guidelines, referring to it as “policy document”. The principles referred to were summarised in WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 at [197] as follows:

The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context:  City of Wanneroo v Holmes (1989) 30 IR 362 (Holmes) at 378 (French J). The interpretation “turns on the language of the particular agreement, understood in the light of its industrial context and purpose”: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 (Amcor) at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 (Street J)).  To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced:  see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop, Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).

And see: James Cook University v Ridd [2020] FCAFC 123; (2020) 298 IR 50 at [65].

132    The respondents’ submission is focussed on cl 1.42 of the Guidelines recited above at [66].

133    The interpretation of the Guidelines is relevant to this threshold submission of whether relevant action has been taken that could constitute discrimination, but also to other issues that arise to be considered in respect to the direct and indirect discrimination claims.

The Guidelines

134    That clause must be read in context.

135    A number of observations may be made about the Guidelines.

136    First, the Guidelines are a document which represents an agreement between the Commissioner and the Police Association either under s 87 of the Police Act (formerly s 86 of the Police Services Act), or such agreement being provided for in the Award: cl 41.2. Clause 41.2 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. The revocation of the appointment of a Leading Senior Constable shall not be regarded as reviewable action for the purpose of section 173(2) of the Police Act 1990.

137    The relevant version of the Guidelines is that agreed in 2014. Although the applicant did not accept that it was an agreement under s 87 of the Police Act, he did accept that it was the type of guidelines contemplated by cl 41.2 of the Award, and that there were communications between the Commissioner and the Association in which the Association endorsed the draft that they were provided with (which reflects the terms of the Guidelines). As the LSC Agreement was made pursuant to the then s 86 of the Police Act, and it expressly envisaged inter alia, that the conditions of the appointment shall be in accordance with the Memorandum of Understanding referred to above at [59] and “subject to provisions duly agreed between the Commissioner and the Association”, and the procedure undertaken in terms of agreeing the terms of the Guidelines, the obvious inference is that it is an agreement pursuant to s 87. That said, it plainly falls within cl 41.2 of the Award, and the applicant did not contend that the disagreement as to the application of s 87 bore any practical difference in this case. Certainly none was identified.

138    The Guidelines set out the terms and conditions of the appointment as an LSC. It has operation as a statutory instrument.

139    Second, those Guidelines replace the 2008 Guidelines and contain a number of significant amendments thereto. Most relevantly, the Guidelines provide more detail as to the inherent requirements of the appointments and expand the circumstances in which an appointment can be revoked (including by the insertion of cl 1.42). The interpretation of the meaning of clauses in the 2014 Guidelines is in the context of those earlier guidelines.

140    Third, the Guidelines set out the inherent requirements of an LSC: cl 1.2-1.5, and eligibility criteria: cl 1.6. There are a specified or limited number of LSC opportunities allocated to a Command. It is the Commander of the relevant Commands who has the authority to fill vacant LSC positions and who has the responsibility for management of the positions: cl 3. Once appointed an LSC must input an “Agreed Key Responsibility” detailing their performance agreement, which reflects that there will be six monthly reviews, and that action by the Commander “will be taken” in relation to unsatisfactory performance to cease the appointment: cl 11 .

141    Fourth, an officer who has the status of an LSC and who is likely to be medically discharged may be placed in an overstrength position, provided the officer satisfies the medical criteria for discharge: cl 8. That person would, in effect, be supernumerary to the positions in the Command. The applicant contended that if this occurred the officer retained their LSC status and salary. The relevant clause, cl 8, in the 2014 Guidelines is as follows:

An officer who is likely to be medically discharged may be placed in an overstrength position provided that the officer satisfies the criteria set out in the Medical Discharge Standard Operating Procedures (SOPS). Once this has occurred, the Leading Senior Constable opportunity becomes available to be filled.

142    This is to be contrasted to the relevantly equivalent clause in the 2008 Guidelines which expressly stated that the LSC salary was retained:

Upon receipt of an LSC’s application for medical discharge, arrangements will be made to place the officer into an overstrength position with the Command. While the officer will still be entitled to retain their LSC salary as described above, the relevant Command may take appropriate action to fill the LSC opportunity.

143    The absence of the express protection of the LSC salary which had previously been provided for in the Guidelines supports the conclusion contended for by the respondents, that if placed in an overstrength position the officer does not continue to be paid as an LSC. This is also supported by a consideration of cl 8 in its context, which includes cl 1.42 as described below (and that it was inserted at the same time as the protection was removed): see below at [146]-[149].

144    Fifth, once appointed, an officer retains the status of LSC until the officer is promoted, transferred to another section at their request, chooses to terminate their appointment or their appointment is revoked: cl 8.

145    Sixth, the circumstances in which the LSC status can be revoked are provided for as the following: minor misconduct or unsatisfactory performance: cl 1.29; significant misconduct or performance issues: cl 1.30; non-performance: cl 1.31; transfer: 1.32; certain leave without pay for more than three months: cl 1.41; and injury or illness: cl 1.42. The preconditions for each of those bases is different as is the terminology used to describe the consequence of the preconditions arising. For example, if significant misconduct or performance issues are established, the Guidelines state that the LSC status “will be immediately revoked”: cl 1.30. This is to be contrasted to cl 1.42, revocation on the basis of injury or illness, where, if the preconditions are established, the Guidelines state that the status “will be revoked”: cl 1.42. On the other hand, in respect to non-performance of the inherent requirements the status “may be revoked”: cl 1.31. Accepting the nature of this document, and that it ought not to be interpreted in an overly technical or legalistic way, contrary to the applicant’s contention, the differences in language as to the circumstances of the LSC status being revoked are of relevance. It reflects at least, that the consequences as to revocation may differ depending on the nature of the basis of revocation. It also reflects that by the use of the word “may” (for example in cl 1.31) there is in certain circumstances a discretion as to whether the consequence follows, whereas in other circumstances there is no such discretion. The procedure to be undertaken by the Commander if the status of an LSC is to be revoked is also provided for: cl 9. As noted above, cl 1.42 did not exist in the 2008 Guidelines and extends the circumstances in which a revocation occurs.

146    Seventh, legitimate use of sick leave is not a basis for an officer’s appointment to be assessed as unsatisfactory or not meeting the inherent requirements, and therefore is not a basis for revocation: cl 1.31, cl 1.42. If the LSC suffers a work related injury, they will have their status maintained during any period of rehabilitation designed to return the officer to their pre-injury duties: cl 1.42. However, if an officer is certified as unable to return to their pre-injury duties and is unable to undertake the inherent requirements, or has been deployed to other suitable employment, their LSC status “will be revoked”: cl 1.42. If a Commander is seeking for an officer to retain their LSC status “in such circumstances this must be forwarded to the Commander, Human Resources for consideration”: cl 1.42. Although revocation on this basis is not specified in cl 1.33 as one of the reasons an officer may request a review, it is also not specifically prohibited under cl 1.34.

147    That position is be contrasted with the position under the 2008 Guidelines in respect to a work related injury or illness. Those Guidelines expressly provided that an LSC will have their “salary and classification maintained for all periods of leave associated with such injury/illness” and that “will also apply to any period in which they are participating in a rehabilitation program prior to resumption of full time duties as a Leading Senior Constable.” The 2008 Guidelines also provided that if the LSC opportunity is relinquished due to a work related injury or illness as the officer is unable to return to pre-injury duties and alternative duties are offered, the officer will be paid for that alternative duty at the same rate as his LSC rate at the time of the injury or illness. The absence of the express protection of the LSC salary previously provided, in the context where that protection was deleted and cl 1.42 was inserted, reflects a changed approach to those with LSC status who suffer work related injury or illness. This is also reflected in the corresponding change made to cl 8, which removed the salary protection when an LSC is placed in an overstrength position, explained above at [141]-[143]. The change was agreed upon by the NSW Police Association. It will be recalled that although the applicant did not accept that the change was made pursuant to an agreement under s 87 of the Police Act, he did accept that the Guidelines were the type of guidelines contemplated by cl 41.2 of the Award.

148    No issue is taken to the validity of the agreement or that cl 1.42 is directed at the situation of persons who are unable to return to their pre-injury duties, and inter alia, cannot perform the inherent requirements of the role or have been deployed to other suitable employment.

149    It follows that the premise of the applicant’s submission, which is that the Guidelines provide that an officer is entitled to maintain their LSC status (and the salary of that position) for the entire time they are on sick leave is not supported by the Guidelines.

Consideration

150    Against that background, the revocation in cl 1.42 necessarily requires that a person, one presumes the Commander (given the wording of cl 1.42 and that the Guidelines repose responsibility on the Commander of the relevant branch for appointment and management of the positions), be satisfied on the facts of the preconditions. As cl 9 states, the decisions “must be factually based and supported by documentation”. It follows that although an LSC may be certified as being unable to return to their pre-injury duties and as being unable to undertake the inherent requirements or has been deployed to other suitable employment, they will nevertheless retain the status until such time as the Commander, on the facts and documents, satisfies themselves of the preconditions and the affected person is notified of the decision: cl 9.

151    There is no temporal requirement in cl 1.42 as to when the preconditions must be considered or when, if the preconditions are satisfied, the revocation is to take effect. This is to be contrasted with cl 1.30 which requires immediate revocation. The respondents acknowledged that the obligation to revoke if the preconditions are established does not need to be exercised immediately. All that can mean however, is that the preconditions having been found to exist, as in this case, the LSC is to be notified of the date on which it would take effect. However, there is no proper basis in the Guidelines to suggest that the consideration of whether the preconditions exist can be delayed.

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. Contrary to the applicant’s contention, the reference in cl 9 to notifying the LSC of the reasons for their “decision” does not “undercut” that interpretation. Rather, in the context of cl 1.42, “decision” refers to the Commander’s satisfaction of the existence of the factual preconditions. The reference to a decision in cl 9, read in context, does not import any element of discretion.

153    It may be accepted that the revocation clause, cl 1.42, provides that if a Commander is seeking for the officer to retain their status where the preconditions are satisfied, this must be forwarded to the Commander, Human Resources for consideration. The clause on its face recognises the possibility that there may be occasions where, despite the fact that the preconditions exist, the officer may retain their LSC status. The respondents submitted that interpretation is not correct, but rather the reference to consideration by the Commander, Human Services relates to a review of the decision to revoke, or to circumstances where the Commander is unsure whether the preconditions exist and want someone with more expertise to consider it. There is no basis in the Guidelines for those interpretations. Moreover, in cl 1.42, the person whose LSC status is revoked cannot refer the matter to Human Services, it is only the Commander and in specified circumstances. The clause is drafted to apply to the circumstance where the preconditions exist, but that the Commander seeks to have the officer retain the LSC status. That is, the referral to the Commander, Human Services, is in the context where despite the existence of the preconditions, the LSC status is nevertheless sought to be maintained. It is whether that request is to be granted which is being considered by the Commander, Human Services. It follows that there must be envisaged a circumstance where that can occur. There is nothing in the Guidelines to provide any guidance as to what may provide a basis for the LSC not to be revoked, in circumstances where the preconditions exist, or what matters may be taken into consideration.

154    That said, the ability of the Commander of Human Services to consider a request does not make the revocation of the LSC status in the circumstances of cl 1.42 discretionary, in the ordinary sense of the word. The Commander, who has the responsibility of managing the LSC in their Command: cl 3, also does not have such a discretion. Rather, the result is compelled by cl 1.42. If the Commander seeks for that officer’s LSC status to be retained nonetheless, then, and only then, is consideration given to that request as an option. The consideration of any request must necessarily be in the context of cl 1.42 which provides that the status will be revoked. It is not a situation that, where the preconditions exist, a discretion arises to be exercised by the Commander (in this instance Superintendent Glinn) as to whether the LSC is revoked, which is the position advocated for by the applicant. Rather, the existence of the preconditions compels the result that the LSC status must be revoked. If a request is made by the Commander for the status to be retained, that 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. That request must then be considered and assessed inter alia, in the context that cl 1.42 mandates its revocation, in the context of the nature and purpose of the clause, and in the context of the nature of the agreement.

155    There is nothing inconsistent with that interpretation of the revocation paragraph in cl 1.42, with the remainder of the paragraph. Indeed, it complements those provisions. The clause only applies if the preconditions exist and it is directed to situations where officers who have an injury or illness are unable to return to their pre-injury duties.

156    Contrary to the applicant’s contention, the first paragraph in cl 1.42 does not maintain the LSC status for however long the officer is on sick leave. Rather, that clause provides that “there is no basis for the officer’s performance to be assessed as unsatisfactory or not meeting the inherent requirements on the basis of the legitimate use of sick leave”. That is, the officer’s absence on the basis of legitimate sick leave cannot be the reason for determining that the LSC status can be revoked. Thereafter the clause addresses two scenarios, first, that the LSC status is maintained during any period of rehabilitation designed to return the officer to their pre-injury duties, and second, that it be revoked in the circumstances described above.

157    The proposition that the LSC status is maintained for as long as the officer is on sick leave is also not supported by cl 131 of the Police Regulations 2015. That regulation provides that “any such police officer who is absent from duty because of infirmity of body or mind is to be allowed full pay for the whole of the period of the absence if the Commissioner so approves: (a) if the absence from duty is occasioned by infirmity arising from a wound or injury received in the actual execution of the duty of his or her office…”: cl 131(2)(a). That provision does not address maintenance of any position (such as the LSC status) at the time of the injury and during any period of absence. In that context, properly read, cl 131 provides that the officer will be paid full pay for the whole period of absence of whatever their position is at any given time during that period. It follows that if the LSC status was revoked, as a result of the Guidelines, the applicant would receive full pay of his Senior Constables position from that time. I note also that this pay is subject to the approval of the Commissioner.

158    In that context, I note that in a letter to the Commissioner dated 1 December 2014 the applicant informed him, through his solicitors that he did not intend to make a submission against the Commissioner’s application that he be medically discharged pursuant to s 15(b), in an effort to return to work. That is, there is no challenge to the correctness of the Commissioner’s application which, it is assumed, is based inter alia, on the report of Dr McMahon. He sought the application be finalised in a timely manner. A request was made that his LSC status be retained during that time. No evidence was put by the applicant to the Commissioner against the proposition that he was incapable of performing his duties. It follows that he could not argue that the LSC status ought to be maintained during any period of rehabilitation designed to return him to his pre-injury duties, as that was not occurring.

159    As a general proposition, any LSC who is to be medically discharged, would satisfy the preconditions in cl 1.42. The applicant’s LSC status was revoked while the process of his medical discharge was occurring. However, on the evidence that does not always appear to have occurred. It appears that whether the revocation occurs is a matter of timing. It would also depend of the speed with which each event is undertaken. This reflects what appears to have been a rather inconsistent application of this aspect of the clause. However, that cannot affect the interpretation of the Guidelines. Nor is that a result of any unfavourable treatment because the officer has a disability, because to reach that stage the preconditions must exist.

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.

161    There is no evidence that the applicant’s Commander sought to have his LSC status retained. In this case there was no cross-examination of Superintendent Glinn or any submission made which was directed to the failure to consider to do so, or the failure to make a request. Rather, the approach by the applicant was that the preconditions were not satisfied and, if they were, there was some general discretion held as to whether the LSC status should be revoked. For the reasons set out above that is incorrect.

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.

The preconditions for revocation

Submissions

163    The applicant submitted that the preconditions for revocation were not satisfied, and that on the evidence he was entitled to retain his status “during any period of rehabilitation designed to return the officer to their pre injury duties”: citing cl 1.42. The applicant submitted that the reference in cl 1.42 to being “unable to undertake the inherent requirements” of the LSC position should be understood as permanently unable to do so. On the evidence, it was submitted, that the applicant was variously certified as fit for suitable duties and that he had expressed a desire to return to the workplace to undertake rehabilitation. The applicant submitted that it is plain that his diagnosis was a substantial reason for Superintendent Glinn reaching his decision. Superintendent Glinn recognised that the period of absence from the workplace might give rise to some difficulties in or the need for retraining or reorientation in order to undertake certain aspects of the role, he accepted that it was a matter of training.

164    The respondents submitted that the medical evidence established that the applicant was incapable of performing the duties of a police officer, and therefore he was not capable of performing the duties of an LSC. It submitted that it followed that he was not capable of rehabilitation to pre-injury duties. The respondents drew attention to the fact that the criteria enlivening the medical retirement of police officers is based on the police officer having been found on medical grounds “to be unfit to discharge or incapable of discharging the duties of the officer’s position” and that the officer’s unfitness or incapacity “appear likely to be of a permanent nature”: then s 72A of the Police Act. The respondents submitted the evidence was that the applicant had been certified as only being capable of returning to suitable part-time duties for two hours per day, three days per week. It was submitted that the applicant did not dispute the basis for his medical discharge and receives superannuation allowances consequent upon his discharge. As to being unable to undertake the inherent requirements of the LSC role, it was submitted that in a memorandum dated 27 August 2014, Detective Senior Sergeant Rick Sinclair set out a detailed analysis explaining the applicant’s inability to perform the inherent requirements of an LSC within Fingerprint Operations of the FSG, and that Superintendent Glinn accepted this advice. In Superintendent Glinn’s letter to the applicant dated 13 March 2014 he set out the basis upon which he concluded that the applicant was unable to fulfil the inherent requirements of the position. The respondents submitted that a consideration of that document reflected that Superintendent Glinn focused on the consequence of the applicant not having been at work for five and a half years, and some of the consequences of the mental disability that he had.

Consideration

165    As an initial observation, this argument had a degree of artificiality because as noted above at [158], after the revocation, the applicant informed the Commissioner he did not intend to challenge the Commissioner’s application that he be medically discharged pursuant to s 15(b). As a consequence no evidence was put to the Commissioner against the proposition that he was incapable of performing his duties.

166    In light of the discussion above as to the meaning of cl 1.42 it is important to recall that the relevant test to compel the revocation is whether the evidence establishes that the preconditions exist. It is an objective assessment carried out by Superintendent Glinn.

167    Dr McMahon, in his report dated 4 October 2013, diagnosed the applicant as suffering from “Persistent Severe Somatic Symptom Disorder with Predominant Pain” and secondary to “Post-Traumatic Stress Disorder” which justified his medical discharge from the NSWPF. As the respondents correctly submitted, the criteria enlivening medical retirement is based on the police officer having been found on medical grounds “to be unfit to discharge or incapable of discharging the duties of the officer’s position” and that the officer’s unfitness or incapacity “appear likely to be of a permanent nature”. Although Dr McMahon’s report was not the only medical report relied on it was sufficient by itself, given the nature of the LSC role, to satisfy the preconditions of cl 1.42, including that he was unable to return to his pre-injury duties. The other report was that of psychologist Ms Boban.

168    Contrary to the applicant’s submission, that the report did not use the terminology “certify” or “being unable to undertake the inherent requirements of the LSC position”, does not detract from the conclusion expressed in the report, or Superintendent Glinn’s reliance on the report. Rather, the applicant’s submission elevates form over the substance of the report. It is apparent that Dr McMahon’s report was directed to retirement on medical grounds. The findings and terminology must be considered in that context. Dr McMahon concluded that medical discharge would be appropriate which must necessarily be based on satisfaction of the criteria which is necessary for such discharge. I note that although Dr McMahon was provided with the position overview for the applicant’s position, he would not have the expertise of Superintendent Glinn as to the technical or expert requirements necessary for a person holding an LSC position in the ISB.

169    During the hearing the respondents also relied on a report of Dr Smith dated 1 March 2012 which, it appears, was not before Superintendent Glinn (although it must have been with the NSWPF). It was before Dr McMahon. As noted above at [21], the applicant objected to the admissibility of the report on that basis amongst others, including the timing in which reliance on the report was first raised in these proceedings and that he may have wanted to investigate it, including its provenance. Dr Smith’s report is in more direct language than the report of Dr McMahon. He concluded that the applicant is incapable of discharging his duties as a police officer, would not be able to undertake full duties, and was incapable of performing lesser duties. Suffice to say that it confirms the evidence that the preconditions are established. As cl 1.42 operates on the existence of the preconditions, and it is an objective assessment or evaluation, it does not matter whether the material was before Superintendent Glinn. The preconditions existed at the time of the revocation. However, given my conclusion in respect to the material which was before him, it is unnecessary in the circumstances to express any final view as the admissibility of the report.

170    I note also at this stage that the respondents sought to tender all the material before Dr McMahon: see [23] above. This was the subject of very little argument. It was said that, with the exception of Dr Smith’s report, the remaining material is only relevant to the context in which Dr McMahon expresses his views. That material was not relied on for the truth of its contents. The only specific document referred to by the respondents, and it was very briefly, was the letter of instructions to Dr McMahon which was said to make clear that he was expressing a view about whether the applicant should be medically discharged. However, so much is plain from the face of his report. The applicant objected on the basis of relevance, and submitted that besides Dr Smith, the matter had been approached on the basis of whether the reports before Superintendent Glinn constituted certification, which turned on the report. No further submissions were made about documents, and I was not taken to any document said in any way to affect the reading of the report of Dr McMahon. In those circumstances the respondents have not established the relevance of the material, and as such, it is not admitted.

171    I accept the evidence of Superintendent Glinn which is summarised above at [40]-[46]. It is unnecessary to repeat here and was largely unchallenged. This evidence includes the basis on which he found that the preconditions in cl 1.42 were satisfied including the basis on which the applicant was unable to undertake the inherent requirements of the LSC appointment in ISB. This is set out in the letter providing notice of his intention to revoke the LSC. It is plain from that letter that the applicant addressed each aspect of the inherent requirements and why on the material before him the applicant could not fulfil the requirements. The preconditions having been found to exist cl 1.42 compelled the result that the LSC would be revoked.

172    It is unnecessary to repeat all the evidence. Suffice to say in light of the applicant’s lengthy absence from work and medical advice he was not capable of performing operational duties and therefore was unable to provide situational leadership in all areas including the field (i.e. major crime and incident scenes), the office and the laboratory environment or provide formal and informal training, coaching and mentoring to more junior staff members and deliver formalised face-to-face technical training to fingerprint experts, fingerprint technicians and officers working at crime scenes in group and individual sessions. He no longer held the technical qualifications necessary, nor the necessary expertise or knowledge to perform the role including the use of new and upgraded technologies that had been implemented during his period of absence. He was unable to undertake the inherent requirements of his LSC position.

173    It is necessary to address some specific submissions advanced by the applicant.

174    First, the applicant’s reliance on WorkCover certificates to submit that he has repeatedly been certified as fit for suitable duties by his treating general practitioner since 2013 (including at the time of the revocation) as proof that he was not certified unable to return to his pre-injury duties, is misplaced. The certificates were for a particular purpose. At most, they certified that the applicant had capacity for some work between 9 am and 11 am, Monday to Wednesday. The section on the form which addresses capacity and not to be completed if the person is fit for pre-injury duties, is completed in each certificate with the limitations including short breaks after 30 minutes. As at the time of the revocation the applicant had not worked for approximately five years. It is plain from Dr McMahon’s report that he had those certificates before him as part of the information relied on for the purposes of his report. Those certificates do not reflect that the applicant was able to return to pre-injury duties. Nor was there any evidence that he could do so in the reasonably foreseeable future. The rehabilitation had failed over a reasonable period, indeed an extended period, to return the applicant to operational duties let alone pre-injury duties.

175    Second, the applicant placed significant reliance on the conclusion in the report of Ms Boban dated 4 December 2013, which stated “it is recommended that Mr Ryan be supported in a return to work plan for duties suitable to his field of expertise”. That report is of limited assistance. Ms Boban does not state what materials were before her or what she had taken into account. The basis of the recommendation appears to be that in the preceding sentence where she stated that he “would be suitable to return to work with suitable duties as his trauma involved a motor vehicle accident rather than work related incidents.” Leaving aside that it was a work related injury, there is nothing in the report which suggests she had material as to the requirements of the applicant’s role as an LSC in a specialised branch and nor does she address the effect of his diagnosis on his ability to fulfil them. This material was before Superintendent Glinn. This report is to be contrasted with the report of Dr McMahon, as to the details he had that provided the basis of his conclusion, and that conclusion which necessarily implies an acceptance that the criteria for medical discharge is established. Ms Boban’s report does not detract from his ability to have concluded that that the applicant was unable to fulfil the inherent requirements of the LSC role.

176    Third, even putting that to one side, the applicant’s submission is premised on the fact that he should have continued to have the LSC status maintained during the period of rehabilitation designed to return him to his pre-injury duties: cl 1.42. This was based primarily on Ms Boban’s report.

177    As noted above, the certificates relied on by the applicant which were said to certify him fit for suitable duty at particular times, that being two hours a day three days a week, do not amount to being able to return to his pre-injury duties. Nor does the report of Ms Boban. These must be considered in light of those duties. It is timely to recall as a starting point that the applicant was a full-time officer attached to the FSG, and in particular to the ISB. Leaving aside the additional functions of an LSC, the applicant had been away from work for approximately five years. Having been away he was not qualified to perform the basic work as a fingerprint expert. He did not have the expertise (or the accreditation by the relevant forensic body) to enable him to return to that work. He would not have what was described as the subject matter expertise to fulfil the role. Although the applicant suggested that it was just an issue of training, and therefore he was not permanently unable to return to his duties, the evidence was that it would take approximately four to six years to obtain the qualifications necessary. That four to six years is based on how long it ordinarily takes for a person coming into the branch. The applicant however, at best, was certified for six hours a week and for some work only. It would plainly therefore be, even hypothetically, a much longer task.

178    This is a specialist branch and although returning to work after an injury might in other areas also involve some retraining or reorientation, the nature of the inherent requirements in this branch are out of the ordinary. The applicant’s submission in relation to training not being an unusual occurrence for people returning to work, which was made in an attempt to characterise this case as not atypical, cannot be accepted.

179    At the time the preconditions were considered, he was unable to undertake the inherent requirements of the LSC position on that basis alone. There were other aspects of the inherent requirements which Superintendent Glinn also concluded he would not be able to fulfil. Some were based on information in Dr McMahon’s report as to the applicant’s diagnosis. As Superintendent Glinn described, an LSC in his branch is expected to provided situational leadership which includes attending and providing such leadership at complex major crime and incident scenes (including homicides, sexual assaults and disaster victim identification scenes). This would also require travelling in a police vehicle to the scenes. It follows that the position is not as simple as that submitted by the applicant. It was not just a matter of training and reorientation, there were other aspects of the inherent requirements which could not be overcome by such training.

180    The suggestion that the applicant desired to return to work and that he should have been permitted to continue to be an LSC on a return plan does not address the nature of his pre-injury duties and the inherent requirements of the role. Despite the applicant’s expressed desire, he could not return to his role without significant retraining and accreditation. Such a process, in so far as it only related to his qualifications would not be rehabilitation, but would rather be a form of formal retraining: cf: cl 8. As to rehabilitation in relation to his injuries, there is nothing in the evidence to support the proposition that he would be able to return to pre-injury duties, which necessarily included fulltime work. Indeed, the applicant did not provide such evidence and nor did he point to anything in the evidence before the Court that he would be capable of being rehabilitated to enable him to return to pre-injury duties.

181    Fourth, interrelated with the applicant’s submission identified in the third point above, was the submission that “unable to return to their pre-injury duties” in the revocation paragraph of that clause means “permanently unable” to do so and that the officer is permanently “unable to undertake the inherent requirements” of the position. That involves reading that latter paragraph of the clause in its context.

182    The applicant’s submission was that without the revocation aspect of the clause being interpreted in that manner the preceding paragraphs in that clause “about legitimate sick leave” and about LSC status being maintained during a rehabilitation program “designed to return the officer to their pre-injury duties would make no sense”. As to the first, for the reasons given above at [156]-[157] the paragraph about the legitimate use of sick leave does not have the meaning contended for by the applicant. As to the second, the applicant’s submission is put on the basis that there is a binary choice. This clause is not directed to maintaining the status until an officer is well or medically discharged. An officer can be on legitimate sick leave but not be undergoing rehabilitation with the purpose of returning to pre-injury duties. That an officer is undergoing rehabilitation does not of itself mean that it is for the purpose or design of returning to pre-injury duty. That clause presupposes that the officer will, or at least there is a proper basis to consider that the officer is likely to be able to, return to pre-injury duty. The officer’s status is not maintained during a rehabilitation program without there being a program designed to return the officer to their pre-injury duty in the reasonably foreseeable future. In applying that clause the nature of the pre-injury duty may well be relevant. Given the applicant’s submission it is also appropriate to recognise that it is not the applicant’s purpose that is determinative. Simply because an applicant expresses a desire to continue to work, or that the applicant perceives that is the purpose of any rehabilitation, is not the issue.

183    There is no proper basis to read the word “permanently” into the clause in the manner sought. It would elevate the requirement in this clause to be higher than that required for medical discharge, which is likely to be permanent. I note also that the applicant referred to the Medical Discharge Standard Operating Procedures, which refer inter alia, to criteria for considering officers appropriate for medical discharge and refer to failure over a reasonable period to return the officer to operational duties, the officer being on a non-progressive rehabilitative program and whether the officer is unlikely to return to full operational duties.

184    The revocation clause applies to both work related and other illness or injury which result in the officer being unable to return to pre-injury duties and being unable to fulfil the inherent requirements of the position (or has been provided other suitable employment). The purpose of this clause appears to be to free up the LSC positions, they being of limited numbers. This is in the context where each branch has a particular number of such positions, they were designed to assist with the retention of experienced officers, and to recognise the leadership role within the branch, and because of injury or illness, the relevant branch is down an LSC position. Given the inherent requirements of the positions, they are properly characterised as leadership positions within the Commands. This clause enables other officers the opportunity to take up and fulfil the role in circumstances where the LSC who has the status cannot.

185    In any event, that said, in this case the preconditions exist or are satisfied regardless. Moreover, as I observed above, this argument had a degree of artificiality about it as the applicant did not contest the application for medical discharge, and no evidence was put to the Commissioner against the proposition that he was incapable of performing his duties (and that it was likely to be permanent).

The pleadings

Submissions

186    The respondents submitted in the alternative to the contention that the revocation was not unlawful because it was compelled by the Guidelines, that the application must nonetheless fail because the applicant alleges a breach of s 15(2)(b) and (d) of the DD Act, when on proper consideration, neither applies to the revocation. It was submitted, properly understood, the claim falls with s 15(2)(a).

187    It is appropriate at this stage to recite the terms of s 15(2) of the DD Act:

(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.

188    In that context it is necessary also to refer to s 21A of the DD Act, which is an exception in relation to the inherent requirements of the work, and is in the following terms:

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).

189    That provision applies in respect to s 15(2)(a) but not to s 15(2)(b) and (d): s 21A(4).

190    Section 21A is not a defence to be invoked by a party at his or her discretion. It is a defining provision to the effect that certain acts amounting to discrimination (as defined in s 5 and s 6) are not unlawful: Berry v State of South Australia [2017] FCA 702 at [27] (Berry).

191    The applicant submitted that maintaining an LSC appointment whilst on paid sick leave was a benefit of the applicant’s employment at the time of his appointment as an LSC in 2002 and thereafter. It was submitted that the revocation of the LSC status denied the applicant access to that benefit. It was therefore submitted that the claim properly fell within s 15(2)(b), but if not, the revocation of the status was a detriment within s 15(2)(d). The applicant submitted that the decision had the effect of unilaterally reducing the applicant’s salary whilst on paid sick leave, thereby imposing a detriment on the applicant. In oral submissions, the applicant contended that “to the extent that denial of continuing employment as an LSC is not a denial of a benefit, we would say its revocation is a detriment”.

192    On the other hand, the respondents submitted that the applicant’s claim, properly understood, came within s 15(2)(a) which, it was submitted was not relied on to avoid the operation of inherent requirements defence which applies thereto: s 21A(4). It was submitted that the applicant’s complaint is with the Guidelines establishing the circumstances in which his LSC status must be revoked. Retaining an LSC status while not being able to work is not a benefit associated with employment within the meaning of s 15(2)(b), and nor is the reduction of salary a detriment within s 15(2)(d). It was submitted if the complaint falls within s 15(2)(a) then it does not fall within s 15(2)(b) or (d), with the consequence that the applicant cannot establish his case as pleaded.

193    That said, the applicant accepted that if the revocation clause in the Guidelines “had effect, irrespective of [or] without any actual decision being made, then I can see the argument that the complaint is one of the terms and conditions in themselves. If, as we say is clearly the case, the complaint is one of – in relation to a particular decision made by Superintendent Glinn, then it would not fit within 15(2)(a) and must fit within either (b) or (d)”.

Consideration

194    Each of paragraphs (a) to (d) in s 15(2) are directed to different kinds of conduct or treatment: Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220 (Watts) at [67], and see [59]-[66]. Section 15(2)(d) is a residual provision and therefore only applies to matters not otherwise covered by the preceding paragraphs: Watts at [67].

195    It follows, that if the allegations, properly considered, fall within s 15(2)(a), they do not fall within s 15(2)(b) or (d). That necessarily involves a consideration of those subparagraphs and the distinction in their meaning and application, and the case as pleaded.

196    In relation to s 15(2)(a), “the terms or conditions of employment that the employer affords an employee” are “not restricted to the matter of the terms of contract of employment, but being designed to encompass as well, all those demands and requirements, and benefits and concessions in the actual employment which the employee must comply with or can accept as the case may be”: Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 (Allders) at 55 cited with approval in Amery at [67]-[68] per Gummow, Hayne and Crennan JJ (in the context of considering indirect discrimination); State of New South Wales (Department of Justice - Corrective Services) v Huntley [2017] FCA 581 (Huntley) at [94]. The actual category and type of employment must be identified as the indicator of the terms and conditions of the complainant: Amery at [68].

197    In Watts in relation to s 15(2)(a), Mortimer J observed at [59]

[59]    …Subsection (2) takes as its premise an existing employer–employee relationship and deals with the treatment of employees in that context. That premise means there will be terms and conditions already attaching to the employment contract before any impugned conduct or treatment arises. The use of the verb “affords” in paragraph (a), expressed in the present tense, indicates that the conduct said to constitute discrimination could relate either to those existing terms and conditions, or to any changes proposed or made to them by the employer. That construction ensures there is no gap between the protection given by subs (1) to prospective employees and that given to existing employees. The use of the word “in” at the start of this paragraph is important: it indicates that paragraph (a) is directed to terms and conditions of employment (whether existing, proposed or changed) that are in and of themselves discriminatory. I agree with the submission of the applicant that paragraph (a) does not deal with the application of a term or condition to a given factual situation between an employer and an employee. Rather it looks to the nature and operation of the term and condition itself.

198    In relation to s 15(2)(b), the applicant relies on the phrase, “other benefits associated with employment”.

199    In Watts in relation to s 15(2)(b) Mortimer J observed at [60]–[61] and [65]–[66]:

[60]    Bearing in mind that each paragraph should be given real and separate work to do (Baume 2 CLR 405 at 414; Plaintiff M47/2012 v Director-General of Security (2012) 292 ALR 243; [2012] HCA 46 at [41] per French CJ, at [172] per Hayne J, at [450] per Kiefel J), when s 15(2)(b) speaks of “promotion, transfer or training”, it is dealing with matters outside the terms and conditions of employment. In my opinion, they are three specifically identified “benefits associated with employment”. They are not all benefits which necessarily have a pecuniary impact on an employee’s income. They are not necessarily benefits which are permanent. They are all matters which enhance and develop a person’s capacity and opportunity in her work. The use of the word “opportunities” in paragraph (b) indicates that these “benefits” are not to be seen wholly from the perspective of the employer (that is, benefits which increase a person’s value as an employee) nor are they to be seen wholly from the perspective of the employee (that is, benefits which bring personal achievement and satisfaction to the employee). Rather, they encompass both perspectives. Further, the use of the word “opportunities” distinguishes the breadth of this provision from the specific exception in s 21A(1)(a), which concerns selection for promotion or transfer.

[61]    There is a question as to how the phrase “other benefits associated with employment” in s 15(2)(b) should be construed, given that three specific benefits have been identified by Parliament….

……

[65]    In the context of s 15(2) of the DDA, whose function is to express prohibitions on certain conduct, with the purpose of protecting employees with a disability from discrimination during the course of their employment, in my opinion the identification of “promotion, transfer or training” is intended to do no more than provide specific examples of “benefits associated with employment” and is not intended to restrict or limit what might otherwise fall within the concept of “benefits associated with employment”. The language and context suggest, as I have observed above, a broad range of matters which could be “benefits”, including matters that employees may regard as benefits (such as new challenges or greater interaction with fellow employees) and those that employers might regard as benefits (such as temporary promotions to fill a gap) and those that both employers and employees might regard as benefits (such as training).

[66]    Accordingly, there is no reason to exclude from the concept of “benefits associated with employment” matters such as those identified by the applicant in this case: attending for work, performing work and exercising skills, using accrued entitlements at a time and for a purpose of the employee’s choosing (as would usually be the case with entitlements, within reasonable limits) and earning ordinary income. A similar approach in a different statutory context was taken in Quinn v Overland (2010) 199 IR 40; [2010] FCA 799 at [110] per Bromberg J. In another context, see also Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539; [2005] HCA 22 at [80] where Callinan and Heydon JJ stated:

It may be that in modern times, a desire for what has been called “job satisfaction”, and a need for employees of various kinds, to keep and to be seen to have kept their hands in by actual work have a role to play in determining whether work in fact should be provided.

200    Finally, in Watts in relation to s 15(2)(d), Mortimer went on to observe at [67]-[69]:

[67]    … The use of the word “detriment” within the same subsection as the word “benefit” indicates those terms should be taken as encompassing different kinds of conduct or treatment. The use of the word “other” in paragraph (d) makes clear that the three matters with which paragraphs (a)-(c) deal are regarded by Parliament in their effect on employees as forms of detriments. The purpose of (d) is to pick up matters not otherwise covered already in that subsection. In that sense, it is surplusage to construe paragraph (d) as a negative mirror of paragraph (b): the better approach is to see each paragraph as directed at different kinds of conduct or treatment.

[68]    Aside from a nexus between the identified “detriment” and the employment of the person concerned, the context otherwise suggests no particular limits on the meaning which should be given to that word. For example, it may be a loss or disadvantage which is temporary but real (such as moving an employee away from her established workplace and colleagues); it may be a prejudice to the earning of additional income (such as a facially neutral requirement about eligibility for overtime which disproportionately affects employees with a particular disability); or it may be damage done by the tolerance (or encouragement) of teasing or harassment of a disabled employee in a workplace. Essentially (and perhaps obviously), a “detriment” within paragraph (d) will have an immediate negative connotation: a “benefit” within paragraph (b) will have an immediate positive connotation. A “detriment” should not be identified solely by the negative expression of what is in reality a benefit.

201    I note also in respect to the contrast between s 15(2)(a) and (b) Perry J in Huntley at [94] after referring to Watts observed:

[94]    … Secondly, s 15(2)(a) of the DDA is concerned with the terms and conditions which the employer “affords” to the employee. By way of example, Lee J held in Allders with respect to the equivalent provision in the NSW Act that a requirement that a female employee retire at 60 years of age while male employees are not required to retire until 65 constituted less favourable treatment in her terms and conditions of employment. By way of contrast, s 15(2)(b) is concerned with a denial of, or limitation on, access to a benefit associated with employment which may include, but is not necessarily limited to, a benefit which is a term or condition or employment in line with the ordinary meaning of benefits and detriments in those provisions accepted by Mortimer J in Watts…

202    The importance of correctly pleading the claim is illustrated in Berry where Charlesworth J concluded at [29]-[30]:

[29]    I emphasise that the parties seek a declaration of contravention of s 15(2)(b) and (d) in respect of which s 21A does not apply except to the limited extent provided for in s 21A(4). However, the broader legal context to which I have referred renders it all the more necessary for the parties to agree or prove facts that make it clear precisely how either s 15(2)(b) or s 15(2)(d) have been contravened by virtue of SAPOL’s failure to make the adjustment referred to in the agreed facts and precisely how the elements of the definition of discrimination are satisfied in either instance.

[30]    I do not consider a loss of subjective enjoyment of employment to be sufficient of itself to satisfy the requirements of either s 15(2)(b) or (d), particularly if the loss of enjoyment is founded upon an incorrect belief as to the rights and obligations of the employer and employee. In short, it remains unclear to the Court how s 15(2)(b) or s 15(2)(d) are enlivened on the facts. The Court should take care to ensure that facts that satisfy s 15(2)(a) are not mistakenly categorised as facts satisfying s 15(2)(b) or (d) so as to preclude consideration of s 21A. It is not suggested that there has been any deliberate mischaracterisation in this case, only that there is ambiguity about how s 15(2)(b) or (d) are said to apply, and that the ambiguity is unsatisfactory in all of the circumstances.

203    As a result in Berry that aspect of the claim was not established despite the agreed facts.

204    Against that background I turn to this application. As explained above, focus must be directed to identifying the actual category and type of employment, because the notion of employment takes its content from the identification of the position to which the person has been appointed: Amery at [68].

205    The applicant was appointed an LSC. That appointment was subject to the operation of the Guidelines, the content and status of which has been explained above at [134]-[162]. It is timely to recall that the LSC Agreement was made pursuant to the then s 86 of the Police Act, and envisaged inter alia, that the conditions of the appointment shall be in accordance with the Memorandum of Understanding referred to above at [59] and “subject to provisions duly agreed between the Commissioner and the Association”, and the procedure undertaken in terms of agreeing the terms of the Guidelines.

206    As is evident from the nature and content of the Guidelines, they set out the terms and conditions of the appointment of an LSC afforded to him by his employer. This includes the circumstances of revocation. The Guidelines set out “all those demands and requirements, and benefits and concessions” of the position “which the employee must comply with or can accept as the case may be”: cf: Allders at 55; Amery at [67]-[68].

207    The Guidelines do not provide that the appointment to the status of LSC is necessarily indefinite. In fact, the Guidelines provide the circumstances in which the LSC status of an appointee may and must be revoked, cl 1.42 as discussed above, is an example of the latter. That clause only, but always, applies if the LSC is unable to return to pre-injury duties in a context of the appointee suffering injury or illness and being unable to undertake the inherent requirements or has been deployed to other suitable employment. That clause is one of those conditions of employment, and as explained above, if the preconditions in the clause exist, the clause compels the result. In that sense the revocation is mandatory. The applicant’s contentions, properly understood, go to the terms and conditions, relevantly being cl 1.42.

208    Indeed, the applicant’s submission did not suggest otherwise than it was a condition, but rather referring to Watts at [59], it was submitted that it related to the application of a term or condition to a given factual situation between an employer and employee. The applicant submitted that “the complaint in this matter is to a particular voluntary decision made by the, Superintendent Glinn…to revoke the applicant’s Leading Senior Constable Appointment. And that would not fall within a context that the concept of “in the terms and conditions” rather, it is a particular voluntary act that is complained about. And it’s for that reason that, we think, it falls more naturally within (b) or (d)”.

209    Once it is accepted that cl 1.42 compels the result, there is no voluntary decision. Properly understood, it is the clause that is the real complaint. That clause is properly considered to be a term or condition of the applicant’s employment, afforded by his employer. That falls within s 15(2)(a), and therefore does not fall within either s 15(2)(b) or (d).

210    Regardless, a consideration of the applicant’s submissions as to how the allegations are said to fall within s 15(2)(b) and (d) are flawed. The applicant’s submission that “maintaining an LSC appointment whilst on paid sick leave was a benefit [within s 15(2)(b)] of the applicant’s employment,” is incorrect. Even leaving aside that s 15(2)(b) appears to be directed to denying or limiting access to a prospective benefit, the submission proceeds on a false premise. The submission entirely ignores the nature, content and status of the Guidelines, and does not address cl 1.42. The Guidelines do not provide that an LSC has an entitlement to that status indefinitely, or that he has an entitlement if the preconditions in cl 1.42 exist. In so far as the applicant’s submission was that he was denied the benefit, being the entitlement by the applicant to a higher salary, or that he has suffered a detriment because he is no longer entitled to it, the submission misses the point. It is not as simple as asking the question whether the applicant benefits from retaining the position, or suffers a loss from its revocation. As the respondents submitted, given the applicant no longer had the capacity to perform the inherent requirements of the LSC, the Guidelines and the terms of s 15(2)(b), it would strain the meaning of the word benefit to include maintaining the status of LSC when a police officer no longer satisfied the criteria for continuing appointment. This could not properly be construed as a “benefit associated with employment” within the meaning of s 15(2)(b).

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.

Direct discrimination

213    Even if cl 1.42 did not compel the result that the LSC status be revoked, or if the claim falls within s 15(2)(b) or (d) instead of (a), the applicant would not have established direct discrimination.

214    There are two aspects to establishing direct discrimination; that the applicant is treated less favourably than a person in circumstances that are not materially different and that the cause of the less favourable treatment was because of the disability: s 5 (1) DD Act, see Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92 (Purvis) at [213]; Sklavos v Australasian College of Dermatologists [2017] FCAFC 128; (2017) 256 FCR 247 at [33].

Comparator

Submissions

215    The applicant relied on a hypothetical comparator who he contended in this case is (a) a non-executive non-commissioned police officer to whom the PS Act applies; (b) who is an LSC or has been appointed to another position attracting a higher allowance over and above that available to the statutory rank; (c) who has been absent from work on paid leave arising from a work related injury for an extended time (comparable to the applicant) and continues to be entitled to paid leave; (d) who is the subject of an application by the Commissioner under s 15B of the PRS Act for the SAS Trustee Corporation to issue a certificate under s 14 of the PRS Act to facilitate the medical retirement; and (e) who is entitled to remain on paid sick leave until they either become well or are medically retired.

216    The applicant submitted that it is not an objective feature of the applicant’s circumstances that the officer has been certified unable to return to his pre-injury duties or perform their inherent requirements because that finding could not properly have been made in the applicant’s case. Rather, the applicant contended that the comparator had to be without the disability that the applicant had, for which it was said that Superintendent Glinn attributed factors typically associated with that disability as the basis provided as the reason for the termination. Without that disability the applicant said one would infer that the hypothetical comparator would be treated in accordance with the Guidelines and the practical experience shown by the PSAC records.

217    The applicant submitted that a person in those circumstances, without a disability would not have been treated in the same way as the applicant.

218    The respondents took issue with the applicant’s identification of the comparator. The respondents submitted that the applicant’s scenario is entirely artificial. On the applicant’s case the applicant has a disability and the comparator has to be someone without a disability on sick leave, ready for medical discharge. However, if an officer does not have a disability (injury or illness) rendering the officer incapable of performing his or her duties which is likely to be permanent, they would not be the subject of an application for medical discharge or on long term sick leave.

219    The respondents submitted that the objective circumstances include the functions, powers and responsibilities of the Commissioner and the industrial arrangements, and in that context contended the relevant comparator to the applicant is a police officer holding the status of LSC without the applicant’s disability who is unable to perform the inherent requirements of the role. Therefore, the comparator involves a comparison between a person in the applicant’s position who has a disability, who is unable to return to pre-injury duties and is unable to perform the inherent requirements of the job, as against someone who does not have a disability but cannot perform the inherent requirements of the job.

220    The respondents referred to Laycock v Commissioner of Police NSW [2006] NSWADT 261, and submitted that, in the context where the issue before the Tribunal was the failure to promote a police officer, there were factual similarities with this case. In particular the respondents referred to [69] where the Tribunal observed, immediately after discussing Purvis, that:

Ms Eastman was correct when she stated in her written submissions that on the facts of this case “[t]he relevant circumstances for the purpose of the comparison is the circumstance whereby an employee is unable to perform the duties of the role for which he/she applied and demands that the employer waive its rights to demand performance”. We are satisfied that Ms Myers and Superintendent Hodsdon acted as they did on 19 September 2002 because of expert opinion that the applicant could not fulfil all of the duties of the job to which he wished to be promoted. We are not satisfied that the respondent would have treated an employee who did not have a disability which was the same as or similar to the applicant’s disability, and who could not perform all of the duties of the job, more favourably than the applicant. It was the applicant’s inability to perform the duties of the job, and not the reason for that inability, which was the operative factor. As Ms Eastman submitted, the result would have been the same had an applicant for promotion to the job of Investigations Manager at the Lake Illawarra LAC been unable to fulfil the actual duties of that job for any other reason.

221    The respondents submitted that reasoning applies to this case.

Consideration

222    The applicant’s submission cannot be accepted.

223    The comparator is “a person without the disability in circumstances that are not materially different”: s 5(1) DD Act. Guidance in relation to determining a comparator was provided in Purvis at [222]-[224] where Gummow, Hayne and Heydon JJ explained how the “circumstances” should be identified:

[222]    It may readily be accepted that the necessary comparison to make is with the treatment of a person without the relevant disability. Section 5(1) makes that plain. It does not follow, however, that the "circumstances" to be considered are to be identified in the way the appellant contended. Indeed, to strip out of those circumstances any and every feature which presents difficulty to a disabled person would truly frustrate the purposes of the Act. Section 5(2) provides that the relevant circumstances are not shown to be materially different by showing that the disabled person has special needs. The appellant's contention, however, went further than that. It sought to refer to a set of circumstances that were wholly hypothetical – circumstances in which no aspect of the disability intrudes. That is not what the Act requires.

[223]    In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant's argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability.

[224]    The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator". It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.

224    In Purvis the applicant was a student who suffered a severe injury as a baby with the consequence that he had behavioural problems which included behaving violently to others. The applicant’s claim was that was that he was discriminated against in his education and later excluded from school on the ground of his violent behaviour toward staff and students which had resulted from his disability. In that context the Court concluded that the circumstances in which the student was treated included the fact that he had acted as he had. That is, his violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils: Purvis at [225]. From that s 5(1) presented two questions: (i) how, in those circumstances, would the educational authority have treated a person without the applicant’s disability? (ii) If the applicant’s treatment was less favourable than the treatment that would be given to a person without the disability, was that because of applicant’s disability?

225    The applicant’s submission and identification of the circumstances of a comparator relies on premises that are incorrect. First, the applicant’s submission as to how the comparator would be treated is premised on a number of propositions from the Guidelines (but not including the revocation aspect of cl 1.42) which are not supported by a proper reading of the Guidelines (as explained above at [134]-[162]). Rather, the submission proceeds on an erroneous proposition as to the entitlement to maintain the LSC status: see [156]-[157] above. Second, the submission is also predicated on the premise that the preconditions in cl 1.42 were not satisfied. This submission was primarily based on the assertion that the applicant was certified fit for a graded return to work by Ms Boban, and therefore the status is maintained during any rehabilitation designed to return the officer to their pre-injury duties. However, as explained above at [163]-[185], the applicant was objectively found to be unable to return to pre-injury duties and to be unable to perform the inherent requirements of the position. It cannot be ignored that Dr McMahon, in a report directed to retirement on medical grounds, concluded that medical discharge would be appropriate in a context where the criteria for that discharge includes incapacity to fulfil the duties and that it is likely to be permanent. Also, as previously explained, Superintendent Glinn addressed each of the inherent criteria before concluding that applicant was unable to perform inherent functions. He did not approach the consideration on the basis the applicant had a disability and therefore could not perform the function.

226    As the respondents contended, relevant to the circumstances are the functions, powers and responsibilities of the Commissioner and the industrial arrangements, and in that context the relevant comparator to the applicant is a police officer holding the status of LSC. Also, as the respondents contended, the Guidelines refer to other circumstances where the officer may no longer be able to perform the inherent requirements of the LSC: for example cl 1.31. Another example is in cl 1.42 where the officer is deployed to other suitable employment. The applicant’s submission as to a comparator cannot simply ignore that part of the Guidelines which include the revocation clause, and the context in which that clause appears.

227    The circumstances postulated by the applicant referred to at [215]-[216] above, are devoid of every feature which presented a difficulty for him. There is no proper basis for that approach: Purvis at [222].

228    The relevant circumstances in this case would include, but are not limited to the matters referred to above. It includes that the officer could not perform the inherent requirements of the LSC position (by reason of, inter alia, the officer does not possess the superior technical skills necessary for the position, and could not fulfil the leadership role which attended the position, for example, could not provide situational leadership, was not able to support training officers).

229    In those circumstances, and in the context of the Guidelines, the applicant has not established that he has been treated less favourably than someone without his disability.

230    An LSC who could not perform the inherent requirements of the position in the circumstances identified would have the status revoked.

231    Similarly, in the context of the Guidelines, an LSC who had been on extended leave as a result of an injury or illness, who has a disability or illness different to the applicant but who is unable to return to return to pre-injury duties and unable to perform the inherent function of the role, by reason of, inter alia, the officer does not possess the superior technical skills necessary for the position, and could not fulfil the leadership role which attended the position would also have the status revoked.

232    The PSAC records relied on by the applicant in this context are inadmissible. The respondents correctly submitted the PSAC records, relied on by the applicant for this purpose (amongst others) are irrelevant. The material at its highest consists of a table containing some names of persons referred to as an LSC, a very brief reference to medical condition, and what is said to be the record of persons certified as proper cases for medical discharge. The entries shown are those with the LSC designation. All are officers with an illness or injury such as to be medically discharged. No further information is known about those persons. The document does not refer to any other officers, it does not address the circumstance when the LSC status was revoked. The information is very scant, and at best reflect that the Guidelines may have been inconsistently applied (at least as to timing). That is not relevant to the issue of comparator. That someone else with a disability might have been treated differently (which cannot be properly ascertained from these records) says nothing about the applicant being unfavourably treated, let alone because of his disability. Noting also that the applicant relied on a hypothetical comparator the applicant’s reliance on the records is misplaced.

233    The applicant has not established that he was treated less favourably than a person without the disability in circumstances not materially different to the applicant.

Causation

234    It follows that the issue of causation does not arise. Nonetheless, it is apparent that underlying the applicant’s submission is his concern, amongst other things, that cl 1.42 appears to have been inconsistently applied. It appears that may well be the case. However, that is not a basis to submit that he has been treated differently or less favourably based on his disability.

235    As explained above, Superintendent Glinn was satisfied that the applicant could no longer perform the inherent requirements of the LSC role.

Indirect discrimination

236    Even if cl 1.42 did not compel the revocation, or if the claim falls within s 15(2)(b) or (d) instead of (a), the applicant would not have established indirect discrimination.

Submissions

237    The applicant submitted in the alternative, that if direct discrimination is not established and that the Guidelines permitted or required the revocation of the applicant’s LSC status, the terms of the Guidelines indirectly discriminated against him within the meaning of s 6(1) of the DD Act, as a person with a disability. It was submitted that the revocation aspect of cl 1.42 imposes a “requirement or condition” within the meaning of s 6(1) of the DD Act.

238    The applicant contended that “a requirement or condition that for an LSC appointment to be maintained whilst on paid sick leave the unfit officer not be found permanently unable to undertake the inherent requirements of an LSC appointment”, had been imposed. The requirement or condition was described in the statement of claim as “the applicant's LSC appointment may be “revoked” if he was on paid sick leave and had been certified as unable to return to their pre-injury duties and was unable to undertake the inherent requirements” (sic) of the LSC appointment”.

239    The applicant submitted that the only issue in this case is the reasonableness of the term or condition. Noting the onus is on the respondents to establish that the requirement or condition was reasonable, the applicant submitted that the revocation of LSC status was unnecessary as the Guidelines provide internally that the officer could be placed in an overstrength position retaining their status: cl 8. The applicant submitted that the condition permitted the respondents to unilaterally reduce the salary of a police officer absent from duty because of a work-related injury, whilst on authorised paid sick leave, and because they have an incapacitating injury arising from their duty which “is grossly unreasonable and unfair”. It reduced the salary of the injured police officer despite being entitled to paid sick leave until they either become well or medically retire, and adversely affected the value of the lifetime pension to which they will become entitled upon their medical discharge. It was submitted that the clause was introduced in 2014, 12 years after the applicant was appointed as an LSC, without his agreement (although apparently by agreement between the respondents and the PANSW), and whilst he was already on paid sick leave arising from a work related injury. It was submitted that there was no evidence that there had been any problem up to that point. It was also submitted that it is the only salary of a police officer that can be reduced unilaterally, absent misconduct: see ss 69 and 173 of the Police Act. The applicant submitted that “the only effect of the revocation was to reduce the value of the statutory entitlement to which the applicant was entitled”.

240    The respondents took issue with the applicant’s contention that the only issue is that of reasonableness. As with the applicant’s argument for direct discrimination, the respondents contended that compliance with the revocation clause was imposed by the terms of the Guidelines, and s 87(1) of the Police Act and as incorporated in the Award under cl 41.2. The respondents submitted 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”. The respondents submitted that this condition falls into the former category.

241    The respondents also took issue with the applicant’s characterisation of the revocation clause, and contended that it is not a discretion to revoke but an obligation. The respondents also contended that the applicant’s identification of the condition alleged to have been imposed in cl 1.42 was incorrect. For example, the respondents submitted that whether an LSC is taking paid sick leave at the time of revocation is not relevant. In doing so the respondents emphasised that the Court is not bound by the applicant’s formulation of the condition alleged to be imposed but must ascertain the actual requirement or condition: Amery at [208]. The respondents contended that the requirement or condition imposed under cl 1.42 is that a police officer be able to be certified to return to pre-injury duties and perform the inherent requirements of the role of LSC.

242    The respondents submitted that in any event, the requirement and condition imposed is reasonable. The respondents submitted that the Guidelines are made as an agreement between the Commissioner and the Association (of which applicant was at least at the time, presumably a member) and had legal force and effect under s 87(1) of the Police Act and was binding on the applicant under s 87(3) of the Police Act, and incorporated into the Award under cl 41.2. The respondents submitted that the applicant agreed to the appointment in the context that such an appointment would be governed by the agreed Guidelines. The role of LSC requires a police officer who has high levels of professional knowledge and expertise and who is able to provide guidance, mentoring and tutoring to less experienced officers. Necessarily, an LSC must be able to undertake operational duties, possess the appropriate training and accreditation and have kept up to date with the latest developments and practices and procedures in the area. Unless an LSC meets the requirements, then he or she cannot provide such guidance, mentoring and training to junior officers. The respondents submitted that under the LSC Agreement and Guidelines, there is only limited funding for and allocation of LSC to each Command. There is no capacity to increase the number of LSCs allocated to each Command: cl 18. The respondents also submitted that in an employment context, it is commonly understood and generally accepted that where a person cannot perform the inherent requirements of a particular position, then it is a valid defence to a claim of unlawful discrimination: see DD Act, s 21A; Fair Work Act 2009 (Cth), s 351(2)(b); see Qantas Airways Ltd v Christie (1998) 193 CLR 280; X v The Commonwealth of Australia [1999] HCA 63; (1999) 200 CLR 177 at [8] and [31]-[35].

Consideration

243    A claim of indirect discrimination directs attention to s 6 of the DD Act recited above at [70]. To establish the claim it must be established that the respondents required the applicant to comply with a requirement or condition, which, because of the applicant’s disability he does not or would not comply, or is not able or would not be able to comply, with the requirement or condition, and the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the applicant’s disability.

244    However, unlawful indirect discrimination does not occur if the requirement or condition is reasonable, having regard to the circumstances of the case: s 6(2) of the DD Act. The burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the Commissioner as the person who requires the applicant to comply with the requirement or condition: s 6(3) of the DD Act.

245    Contrary to the applicant’s contention, the issue in this claim is not simply one of reasonableness.

246    It is appropriate to first consider the condition said to be imposed. As the respondents correctly submitted, there are two aspects of the applicant’s characterisation of the condition which is incorrect. First, that the applicant’s contention that LSC status may be revoked as if there was a discretion whether or not to do so, when as explained above at [150]-[162], properly understood cl 1.42 compels the result. Second, that the person is on paid sick leave. This aspect of cl 1.42 applies irrespective of whether the injury or illness is work related. The condition in cl 1.42 is more properly described by the respondents and is that a police officer be able to be certified to return to pre-injury duties and perform the inherent requirements of the LSC role.

247    That said, attention must be directed to the terms and conditions attendant on the applicant by his appointment as an LSC: Amery at [79]-[82]. It is not the existence of the condition to which the DD Act is directed, but whether the respondents have engaged in the proscribed form of discrimination: Amery at [65]. As the respondents correctly submitted, “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”, and cl 1.42 falls into the former category. For the reasons given above, cl 1.42 is part of the terms and conditions of that appointment. On that basis there was no requirement or condition within s 6(1)(a) of the DD Act.

248    Even if the condition described above at [238] does fall within s 6(1)(a), I accept that the respondents have established that the condition in the revocation clause is reasonable. The applicant’s submission to the contrary cannot be accepted.

249    Whether a requirement or condition is reasonable cannot be considered in the abstract. The nature and extent of its discriminatory effect must be balanced against the reasons for the requirement including any commercial considerations; whether it is appropriate and adapted to its purpose and has a logical and understandable basis; and whether there is a less discriminatory option, including any accommodation of the needs of the aggrieved person and the possibility of alternative action which would achieve the object of the condition and be less discriminatory: Waters v Public Transport Corporation (1991) 173 CLR 349 at 378. These are questions of fact and degree.

250    As the respondents submitted, in assessing the reasonableness it is necessary to “ascertain the reasons underlying a respondents’ insistence upon the relevant requirement or condition” and ask “whether, having regard to such discriminatory effects as it is shown to have and considering the question in a practical and not merely theoretical way, it is, under all the circumstances, objectively justified”: referring to Styles v Secretary Department of Foreign Affairs and Trade [1988] FCA 364 at [74] approved on appeal Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 263. The assessment involves an examination of the requirement and not the conduct of either party. It is not concerned with whether the parties have acted reasonably or unreasonably, an evaluation of the correctness of the Commissioner’s decision or whether other alternatives were reasonable: Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74 at 87; Australian Medical Council v Wilson (1996) 68 FCR 46 at 61; Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at 112; State of Victoria v Schou [2004] VSCA 71; (2004) 8 VR 120 at [27].

251    It has also been recognised that the existence and terms and conditions of an industrial agreement or an award, the statutory scheme and context may be a relevant circumstance in determining the issue of reasonableness: Amery at [13]-[17].

252    Against that background I turn to the Guidelines and the condition.

253    The revocation of LSC status does result in the officer being paid at the Senior Constable rate, which is lower than the LSC rate. However, contrary to the applicant’s contention that is not the only effect of the revocation. It, amongst other things, frees up that LSC position to be filled, provides another officer with the opportunity of filling the position with the benefits that entails, and also provides the Command with the leadership role being actively filled with the benefit for more junior officers.

254    LSC is an appointment not a rank. The positions are limited per Command. The positions are subject to management by the Commander and subject to conditions reflected in the Guidelines, which themselves are subject to change. It is not necessarily a continuing position in that it is subject to conditions including yearly assessments, performance reviews, and there are circumstances where the appointment may or must be revoked. The position does not travel with the officer if the officer changes Command. It was designed to recognise the experience and skills of, and provide leadership assistance by, experienced Senior Constables.

255    Although, and noted earlier, an LSC who is likely to be medically discharged would satisfy the preconditions of the revocation clause, the clause is broader than that. It includes injury or illness which is not work related and officers who are deployed to other suitable employment. An officer who satisfies the preconditions that they are unable to return to their pre-injury duties and are unable to perform the inherent requirements of those duties may nonetheless be able to perform other duties and continue employment with the NSWPF.

256    Contrary to the applicant’s submission, the condition is not unnecessary because of the ability to place the officer in an overstrength position if there is likely medical retirement. Clause 8 only applies to those likely to be medically discharged, and therefore has no application to those who have non work related injuries. It therefore has wider application than cl 8. Moreover, for the reasons previously explained at [152]-[155], the applicant’s submission is based on an incorrect reading of the Guidelines. To be placed in an overstrength position does not result in the applicant retaining his LSC salary. Also, contrary to the applicant’s submission, for the reasons previously given at [156]-[157], the applicant does not have an entitlement to continue to hold the position for all the time he is on sick leave. Neither the Guidelines nor the Police Act support that proposition.

257    The revocation clause has a logical and understandable basis. The applicant’s submission in many respects focuses on his individual position and a claim that the consequence is unreasonable because it is unfair in his case. That the clause did not exist in the earlier Guidelines does not suggest it was not reasonable or needed. To the contrary, that the changes were made by agreement between the Association and the Commissioner gives rise to the inference that, in light of the Guidelines as they previously operated, the changes were deliberate, necessary and appropriate. That the changes occurred after the applicant took up the position does not practically affect the assessment of the reasonableness of the condition. Although the applicant referred to that fact, he never articulated its significance to his argument in relation to his claims. It has not been suggested that the clause does not apply to him by virtue of that fact.

258    The respondents have established that the conditions in the LSC Guidelines are reasonable.

Unjustifiable hardship

259    The respondents submitted that even if the decision to revoke the applicant’s LSC status constitutes direct or indirect discrimination, in prima facie contravention of ss 15(2)(b) or 15(2)(d) of the DD Act, it was not unlawful because avoiding the discrimination would impose upon him an unjustifiable hardship: s 21B of the DD Act.

Submissions

260    The respondents submitted that in determining whether a hardship that would be imposed on the Commissioner would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the matters set out in paragraphs (a) to (e) of s 11(1) of the DD Act. The operation of the unjustifiable hardship defence is broad and not limited to the matters in s 11(1)(a)-(e).

261    The respondents described the hardship as follows:

The alleged discrimination would impose unjustifiable hardship because avoiding the discrimination would mean that the Commissioner’s ability to determine the identity persons to be appointed and the terms and conditions of appointment of police officer to role of Leading Senior Constable would be nullified or impaired. Having been reposed with the responsibility to manage and control the NSW Police Force, the Commissioner must ensure the provision of police services such as the prevention and detection of crime, the protection of persons from injury or death and property from damage and a role in supporting essential services in emergencies: Police Act, s 6(3). Such services are essential to the free and orderly functioning of society, upholding the rule of law, preserving the rights and freedoms of individuals and the prevention of violence, crime and fear: Police Act, ss 6(3) and 7. In carrying out these cardinal functions, the Commissioner is given responsibility to determine the police officers to be appointed to positions including by entering into industrial agreements made with the Association under s 87(1) of the Police Act and making industrial awards by the Industrial Relations Commission of New South Wales under the IR Act. If the Commissioner could not negotiate and implement arrangements governing the appointment of police officers to important roles such as Leading Senior Constable, it would impose a significant and unjustifiable burden on the ability of the Commissioner to manage the NSW Police Force.

262    In that context the respondents accepted that the s 11(a)-(e) factors would need evidence to be established but submitted that the manner in which it is relying on the defence is different to those factors. The respondents submitted that one fact of which there is evidence is that the Commissioner receives limited funding for these roles which are allocated on a limited basis, and which are the product of an industrial negotiation between the Commissioner and the Union. The respondents submitted that the unjustifiable hardship in this case is the fact that a deviation from that agreement is being sought where there are limited allocations for the position.

263    The applicant’s submitted that there is no evidence relied on to establish any unjustifiable hardship under s 21B. The applicant submitted that s 21B requires, first identification of what the discriminator was required to do to avoid the unlawful discrimination which is only maintaining the LSC status of the applicant; and second whether doing that would impose an unjustifiable hardship on the discriminator. It was submitted that avoiding the discrimination does not restrain the capacity of the Commissioner to do what the Commissioner considers appropriate by way of staffing and positions necessary.

Consideration

264    Given my conclusions above it is unnecessary to decide this alternative submission. Suffice to say that the respondents have not advanced any evidence in support of the argument, save for there being evidence as to the limited number of positions, but rather seeks to rely on a general submission based on the number of limited LSC positions and funding and that the Commissioner was acting in good faith in accordance with the industrial agreement. As the respondents accepted, the submission would not fall with s 11(1)(a)-(e), but must rely on the provision being non-exhaustive. In that context it is unnecessary to express a view as to the interpretation of provision and whether such an argument would fall with the concept of unjustifiable hardship.

Orders

265    It follows that the application must be dismissed. I will hear from the parties on the issue of costs.

Associate:

Dated:    16 February 2021