Industrial Relations Commission of New South Wales CITATION: Gurmit Bunait and Commissioner of Police [2009] NSWIRComm 150 APPLICANT Gurmit Bunait PARTIES: RESPONDENT Commissioner of Police FILE NUMBER(S): IRC 970 of 2009 CORAM: Sams DP CATCHWORDS: PRACTICE AND PROCEDURE - application for review of an order of the Commissioner of Police - conciliation undertaken - matter not resolved - listed for report back - dates sought for hearing - discussion as to directions and hearing dates - finding of unsuccessful conciliation - directions issued - application under s 173 of the Industrial Relations Act 1996 made to Industrial Registrar four days after directions made - disqualification application opposed - timeliness of application - whether Commission moved from conciliation phase to arbitral phase - whether time for disqualification application had passed - whether party had waived its rights - principles considered - other authorities' circumstances not analogous to these proceedings - timeliness of application not relevant - Commission had moved to arbitral phase - opportunity to seek further instructions - both parties co-operated in programming -moving party had waived its rights - time for making disqualification application had passed - application refused - directions reaffirmed and matter listed for hearing. Industrial Relations Act 1991 LEGISLATION CITED: Industrial Relations Act 1996 Police Act 1990 Brown v Coca-Cola Amatil (Aust) Pty Ltd (2002) 123 IR 33 CASES CITED: Commissioner of Police and Police Association of New South Wales (2005) 141 IR 423 Director General, NSW Department of Education and Training v NSW Teachers' Federation [2009] NSWIRComm 147 Humphries v Cootamundra Ex-Services and Citizens Memorial Club Ltd (2001) 121 IR 122 HEARING DATES: 2 September 2009 DATE OF JUDGMENT: 16 September 2009 APPLICANT Ms S Wood Oates & Smith Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr J Mattson Bartier Perry JUDGMENT: - 13 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 16 September, 2009 Matter No IRC 970 of 2009 Gurmit Bunait and Commissioner of Police Application by Gurmit Bunait under section 174 of the Police Act 1990 for review of an order of the Commissioner of Police DECISION [2009] NSWIRComm 150 1 The Commission has been moved by an application (' s 173 disqualification application') in the form of a letter to the Industrial Registrar dated 7 August 2009, brought by the Commissioner of Police ('the Commissioner') pursuant to s 173 of the Industrial Relations Act 1996 ('the Act'). The Commissioner seeks to have an application, under s 174 of the Police Act 1990 ('the Police Act'), for a review of an order of Acting Superintendent Garry Sims (on delegation from the Commissioner), made against Senior Constable Gurmit Bunait on 15 June 2009, re-allocated to another member of the Commission for arbitration. 2 At the outset, it may be accepted that the s 173 disqualification application is competently before the Commission by virtue of the provisions of s 179 of the Police Act which expressly require that certain provisions of the Industrial Relations Act are not applicable in any review proceedings under the Police Act. However, s 173 is not so excluded and, presumably, has application in Div 1 Pt 9 review proceedings under the Police Act. In any event, no jurisdictional impediment was raised by either party and I proceed on the assumption that the Commission's jurisdiction has been enlivened by the Commissioner's application. In order to determine this application, it is necessary to outline a history of the proceedings so far. 3 The matter was listed for Conciliation and Directions on 17 July 2009. At that time, the Commission chaired private conferences of the parties. At the conclusion of unsuccessful discussions, the applicant, through his solicitor, Ms S Wood, requested an adjournment in order for him to consult with the Police Association of New South Wales as to whether the Association would fund him pursuing the matter further - presumably to arbitration. (I understand this to be the usual practice of the Association in representing its members in matters before the Commission.) The adjournment was consented to by Mr J Mattson, solicitor for the Commissioner. The Commission expressly stated that the matter was to be listed for a report back on Friday, 31 July 2009. 4 On that date, Ms Wood advised that the parties had been unable to reach an agreement and that she had instructions to have the matter set down for hearing. The Commission went off record to discuss further programming of the matter in light of the applicant's unavailability until the end of September (his mother being ill in India and his intention to travel to India in the following week), and the Commission not yet having a 2010 dairy. I note that Mr Mattson actively co-operated in the programming discussion and agreed to the issuing of directions and liaising later with my Associate as to hearing dates in late February 2010. 5 The Commission went back on record and made a finding that the matter could not be resolved. I then issued directions for a hearing. When the Commission asked as to the dimension of the case, Mr Mattson agreed with Ms Wood that it was likely to be three days. The matter was thereupon adjourned on the basis I earlier described. 6 Seven days later, on 7 August 2009, the Commissioner's solicitor, Bartier Perry, wrote to the Industrial Registrar in which it said inter alia: The matter was then listed for report back on 31 July 2009 to explore the possibility of further conciliation. Without any notice to us (and therefore without the ability for us to obtain instructions), the Applicant said he did not wish to participate in further conciliation discussions. Directions were then issued for the preparation of this matter for hearing. We have now received instructions from our client on the listing of the matter for hearing. Pursuant to section 173 of the NSW Industrial Relations Act 1996 as preserved by section 179 of the Police Act 1990 , we formally request that another member of the Commission be assigned to hear the matter by way of arbitration under section 177 of the Police Act 1990 . The Commissioner of Police requests that the member of the Commission who attempted conciliation not exercise arbitration powers in the matter. 7 On 24 August 2009, the applicant's solicitor, Oates & Smith, wrote to my Associate and advised that the applicant did not consent to the respondent's application under s 173 of the Act and said the applicant wished to put further submissions on the issue. 8 The matter was listed on 2 September 2009, and both parties indicated their preparedness to put short submissions on the s 173 disqualification application at that time. SUBMISSIONS 9 Mr Mattson relied on his own affidavit tendered in the proceedings in which he relevantly deposed that after the 17 July conciliation he genuinely expected further settlement discussions would occur and had unsuccessfully tried to contact Ms Wood on 30 July 2009. Mr Mattson said he attended the listing on 31 July 2009, expecting a further date for conciliation. He did not, at that time, have instructions as to hearing dates, availability of witnesses and whether the Commissioner would take an objection to the Commission, as presently constituted, hearing the matter. He subsequently arranged for the letter to be sent as referred to in par 6. 10 In further submissions, Mr Mattson put that the s 173 disqualification application had been promptly made four business days after the directions were issued and the Commissioner was perfectly entitled to make the request under s 173 of the Act. The Commissioner had not waived his right to do so in circumstances where he believed the matter was to be programmed for further conciliation and no hearing date had actually been set. 11 Mr Mattson relied on three authorities on this subject matter to draw a clear distinction between those cases and the circumstances pertaining here. In Commissioner of Police and Police Association of New South Wales (2005) 141 IR 423, three interlocutory decisions had been given, a hearing date had been set and the s 173 objection had been taken six months later. Mr Mattson noted that the Full Bench, in that appeal case, had rejected the proposition that a s 173 application could be made at any time. However, in this case, it had been made four days after the issuing of directions and no hearing dates had been set. In Humphries v Cootamundra Ex-Services and Citizens Memorial Club Ltd (2001) 121 IR 122, a s 173 application was acceded to in circumstances where it was three months after the matter was programmed and 12 days prior to the hearing date. The Full Bench said at paras [11] and [12]: 11. The question raised by this matter is not whether the union has made a valid objection for the purposes of s 173 of the Act, but rather what steps should be taken by the Commission in the reallocation and programming of the matter having regard to the applicant's failure to bring the application in a timely way. In approaching the matter on this basis, however, we should not be taken as concluding that the objection by the union necessarily falls within s 173 of the Act (and whether proceedings under s 84 of the Act constitute an "other matter" for the purposes of s 173). 12. It must be acknowledged that these circumstances arise due to the present form of a s 173 which would appear to provide an opportunity (perhaps save for an abuse of process) to a party to remove a member of the Commission from arbitration proceedings (where that particular member had engaged in conciliation), irrespective of the timing of that application. 12 Mr Mattson also contrasted the circumstances in Brown v Coca-Cola Amatil (Aust) Pty Ltd (2002) 123 IR 33, where a s 173 objection was taken after directions had been issued, interlocutory steps had been taken, exhibits marked and where the Commission's timetable had not been complied with. While McKenna C had decided the s 173 objection in that case, was too late, the circumstances here, are very different. The conduct of the Commissioner in these proceedings plainly indicated he had not waived his right to make the s 173 disqualification application. In any event, there would be no prejudice to the applicant in circumstances where no date had actually been set and the timetable was very generous to the applicant. For the applicant 13 Ms Wood submitted that the timeliness of filing the s 173 disqualification application was irrelevant. The real question was when did the matter move to arbitration and cease being a conciliation matter? She said it was clear, from the face of the transcript, that the Commission had made a finding of unsuccessful conciliation and the matter would proceed to arbitration. This was the wording used and identified in the Police Case as the definitive factor of when the matter moved to the arbitration phase. 14 Ms Wood said that although the Commissioner may not have explicitly waived a right under s 173, it was implicit, in that it was entirely open for Mr Mattson to have sought an adjournment on 31 July to obtain instructions and he didn't do so. 15 Ms Wood's recollection was that the matter was not given a date for hearing because the Commission didn't have a 2010 dairy. But in any event, this was immaterial. She further recalled that the matter was re-listed for report back on 31 July, and not conciliation, so there was, at the very least, a possibility of the matter being listed for hearing. The request for arbitration was therefore no surprise to Mr Mattson. In reply 16 Mr Mattson said that it was his recollection that an offer had been kept open and further discussions were to occur. He was not armed with any instructions about arbitration on 31 July and had, thereafter very quickly taken the disqualification point. Mr Mattson submitted that the authorities do not establish a 'cut off' point where conciliation ends and arbitration begins. This right may be exercised after directions have been issued. CONSIDERATION 17 Section 173 of the Act is expressed as follows: 173 Members who may exercise arbitration powers after attempted conciliation (1) The member of the Commission who attempted conciliation of an industrial dispute or other matter is not to exercise arbitration powers in relation to the dispute or matter if a party to the arbitration proceedings objects and requests that a different member of the Commission exercise arbitration powers. (2) A member of the Commission is not, for the purposes of this section, taken to have attempted conciliation merely because: (a) the member attempted conciliation after having begun to exercise arbitration powers, or (b) the member arranged or gave directions for a conference of the parties involved in the industrial dispute or other matter, or their representatives, to be presided over by the member, but the conference did not take place or was not presided over by the member, or (c) the member arranged or gave directions for those parties or their representatives to confer among themselves at a conference at which the member was not present. 18 Mr Mattson referred to three decisions of the Commission which considered the issue of disqualification applications under s 173 of the Act: see Brown v Coca-Cola Amatil (Aust) Pty Ltd; Commissioner of Police and Police Association of New South Wales and Humphries v Cootamundra Ex-Services and Citizens Memorial Club Ltd. These decisions, he submitted, were in circumstances vastly different to those pertaining here. In that respect, I would agree with him. To those authorities may be added a very recent decision of the Full Bench in Director General, NSW Department of Education and Training v NSW Teachers' Federation [2009] NSWIRComm 147. There a disqualification application under s 173 of the Act had been made in respect to all three members of the Full Bench in serious dispute proceedings where two of the members had not even participated in any conciliation of the subject matter in dispute. After reiterating the policy considerations underpinning s 173 of the Act (and its predecessor provisions in the Industrial Relations Act 1991) - see also paras 22 to 25 of Commissioner of Police and Police Association of New South Wales - the Full Bench observed at par 23: 23 Bearing in mind the purpose of s 173, that is the enhancement of conciliation proceedings whereby 'the parties should not feel constrained from freely engaging in discussions in the pursuit of settlement by the prospect that the expression of views or positions may redound to their later disadvantage if conciliation should fail', it was plainly the case that neither Boland J nor Grayson DP 'attempted conciliation' of the industrial dispute over 'employee related cost savings necessary to fund salary increases as required by clause 47 of the Award'. There could have been no apprehension on the part of the Federation that either Boland J or Grayson DP '[expressed] views to, and receive views from, a party which may be thought to be contrary to the interests of that or the other party in any later arbitration'. The application by the Federation to disqualify the two members of the Full Bench was more in the nature of a ploy to avoid the Department's application for dispute orders being heard prior to the industrial action planned for the following day taking place, rather than out of any genuine concern for the Federation's position in the arbitration proceedings. I hasten to add that the circumstances disclosed in Director General, NSW Department of Education and Training v NSW Teachers' Federation are, in no way, analogous to the circumstances in this case. 19 However, in reviewing all of the authorities referred to, it seems to me that at least eight principles may be distilled from them, when questions relating to the use of s 173 of the Act arise: 1. The right available to a party to disqualify, from arbitration, the member of the Commission who conciliated the matter, cannot be exercised at any time, but must be made at an appropriate time. 2. A s 173 disqualification application will not succeed merely because the Commission member may have undertaken further conciliation prior to, or even during, the arbitration of the matter. If this was otherwise, the provisions of s 173(2) would be rendered otiose. 3. A crucial consideration will be whether the Commission has moved from the conciliation phase to the arbitral phase. 4. The Commission will guard against the capricious use of s 173 as a tactical ploy to frustrate or delay the orderly and efficient conduct of the Commission's proceedings and case management. 5. The promptness in making a s 173 disqualification application would not usually be a relevant consideration in determining the application. 6. A s 173 disqualification application is not a matter to be determined by the Industrial Registrar, but rather must be determined by the member to whom the application is directed; subject, of course, to any appeal. 7. A party seeking a s 173 disqualification application is not required to provide reasons for the application. 8. Each case will depend on its particular facts and circumstances. 20 In light of these principles, I judge Mr Mattson's submissions, which emphasised the promptness of the Commissioner in making the s 173 disqualification application, to be misdirected. In my view, the crucial and relevant consideration in these proceedings, is not that the application was made four days, or even four months, after the issuing of directions in the matter, but whether, in a practical sense, the Commission had moved from the conciliation phase to the arbitral phase. In this respect, I refer to the following passage in Commissioner of Police and Police Association of New South Wales at par [29]: 29 Turning then to the other contention the appellant advances, which relates to the stage reached in the proceedings before Boland J, the appellant relies here on the proposition that the proceedings were still at the conciliation stage at the time Boland J dealt with the submissions which were the subject of the decision of 9 March 2005. We do not accept that contention. We consider that Boland J made it clear that the proceedings had moved from the conciliation phase to the arbitration phase and that the decision of 9 March, and the submissions that preceded it in relation to the legal issues raised by the appellant, were part of the arbitration phase. We consider that this conclusion emerges comfortably from the nature of the proceedings heard by his Honour but, in any event, is clearly stated in para [3] of his Honour's decision when he said: [3] Conciliation failed to resolve the dispute and the respondent indicated it wished to press its jurisdictional objection that in the circumstances of this matter the Commission did not have the power to order reinstatement or re-employment. This decision is about whether the Commission has such power. This involves the question of whether the provisions of Ch 2, Pt 6 of the 1996 Act dealing with unfair dismissals, excluded the operation of those provisions of the Act in Parts 1 and 2 of Ch 3 dealing with industrial disputes in circumstances where the claim is for reinstatement or re-employment of a former employee. In Brown v Coca-Cola Amatil (Aust) Pty Ltd, McKenna C said at pg 41: I think that once the matter moves into the arbitration phase before a particular member without a s 173 request being made that the time for making the request passes - at least so far as a right to effect automatically a disqualification is concerned. This matter had squarely moved from the conciliation phase to the arbitration phase on 28 March 2002. Had either party wished to make a s 173 request it would have been timely and appropriate to make the application then, rather than submitting to directions for hearing before me on 9 May 2002. In this matter, the proceedings moved into the arbitration phase once I had determined that all reasonable attempts to settle the applicant's claim by conciliation had been made but had been unsuccessful. If I had not been so satisfied, I would not have listed the matter for hearing and given arbitral phase directions for hearing. 21 That said, even if the timing of the s 173 disqualification application was a relevant factor, I do not accept, in the present circumstances, that an application made four business days (actually, seven days, as the Commission's time limits do not exclude weekends) after the fixing of directions, constitutes a timely response to making such an application. I say 'in the present circumstances', because: a) No reasons are required to be given for the making of an application under s 173 of the Act; b) The moving party was, at all times, represented by a competent and skilled legal practitioner; c) The moving party is a frequent litigant in this Commission, invariably represented by a well known law firm, very familiar with the Commission's practices and procedures; and d) If there had been an instructing officer available on the phone on 31 July (as Mr Mattson advised) it begs the question as to why immediate instructions were not able to be sought on that day. 22 This last observation leads me to consider Mr Mattson's further submission that the Commissioner had an expectation of further conciliation on that day. I reject this submission as there could be little or no basis for the Commissioner to have formed the view that further conciliation was to be undertaken on that day. That this is so, is forcefully demonstrated by the following: a) The transcript of the proceedings of 17 July 2009, disclose that the Commission proposed to adjourn the matter and re-list it for report back on 31 July in order for the applicant to obtain advice from the Police Association as to funding his case to arbitration; b) The 31 July proceedings were expressly listed as a report back as confirmed by the Commission's published daily list, my Chamber's diary and the transcript headnote; c) If the proceedings were truly intended to involve further conciliation it would have been usual for the Commissioner to be represented by a senior instructing police officer. He was not on that day. I accept, nevertheless, Mr Mattson's explanation that such an officer was available by phone; and d) The fact that the matter was a report back was further demonstrated by Ms Wood not having the applicant present and consistent with her coming armed with instructions to seek dates for a hearing. 23 As to the Commissioner not waiving his rights under s 173, I do not find Mr Mattson's submissions to be persuasive. I note the comments of McKenna C at pg 43 and 44 of Brown v Coca-Cola Amatil (Aust) Pty Ltd: I also accept the submissions by Ms Ganopolsky that, in a legislative scheme where there is an emphasis the conciliation of matter prior to any arbitration, there is good policy purpose underlying s 173. Equally, if a party elects not to exercise its s 173 request rights prior to consenting to arbitral phase directions for hearing before the member who had conciliated the matter then the right to automatically effect a disqualification is, I think, waived or forfeited. Matters such as the giving of directions for hearing, the determination of notices of motion and the amendment of summonses are not conciliatory or conciliation phase functions. It would be untenable for a party to have a right under s 173 to automatically remove a member from a matter in circumstances where, for instance, the member had, prior to the start of the hearing of the substantive application, determined adversely to the interests of the party belatedly seeking the disqualification issues such as directions, notices of motion or summonses. 24 In my opinion, Mr Mattson had three opportunities on 31 July to seek further instructions as an alternative to further progressing the matter to hearing. Firstly, when Ms Wood declared that the matter was not agreed and she would be seeking dates for a hearing; secondly, when the Commission went off record to discuss programming of the arbitration; and thirdly, when the Commission made a finding of unsuccessful conciliation and proposed making directions in preparation for the arbitration. Moreover, Mr Mattson then actively co-operated in the programming of the arbitration, without demur. In my view, these circumstances plainly demonstrate that the Commissioner had waived his right to make a s 173 disqualification application. That this is so, is further demonstrated by the fact that Mr Mattson also agreed on the estimate of the time required for hearing and agreed it could be heard in February 2010. In light of these factors, and notwithstanding no actual dates were set for the arbitration, I am comfortably satisfied that the time for making the s 173 disqualification application passed, at least after the proceedings concluded that day, but most certainly by the time the application was made four (seven) days later. 25 For the reasons herein expressed, I refuse the Commissioner's application, pursuant to s 173 of the Industrial Relations Act 1996, to refer this matter to his Honour the President for re-allocation to another member of the Commission for arbitration. I reaffirm the directions made on 31 July 2009, and list the matter for hearing on 22 to 24 February 2010 inclusive, commencing at 10:00am. Peter J Sams, AM Deputy President DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.