Industrial Relations Commission of New South Wales CITATION: Stimson v NSW Police Service [2008] NSWIRComm 196 ANDREW STIMSON Applicant PARTIES: NEW SOUTH WALES POLICE SERVICE Respondent FILE NUMBER(S): IRC 428 of 2008 CORAM: Schmidt J Police - application for recovery of money under section 369 of the Industrial Relations Act 1996 - former police officer - whether applicant eligible for Award benefits - eligibility found CATCHWORDS: Award Interpretation - proper operation of clause 4 of the Crown Employees (Police Officers Death and Disability) Award 2005 LEGISLATION CITED: Industrial Relations Act 1996 Workplace Injury Management and Workers Compensation Act 1998 CASES CITED: Director of Public Employment by her agent the Commissioner of New South Wales Fire Brigades and New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158 HEARING DATES: 7 October 2008, 8 October 2008 DATE OF JUDGMENT: 20 October 2008 APPLICANT: Mr TR Edwards, counsel SOLICITORS: Harris Wheeler Lawyers LEGAL REPRESENTATIVES: RESPONDENT: Ms J Oakley, counsel SOLICITORS: Henry Davis York JUDGMENT: - 26 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Schmidt J 20 October 2008 Matter No IRC 428 of 2008 ANDREW STIMSON v NEW SOUTH WALES POLICE SERVICE Application for recovery of money under section 369 of the Industrial Relations Act 1996 JUDGMENT [2008] NSWIRComm 196 1 This is an application brought under the Industrial Relations Act 1996 ('the Act') by Mr Andrew Stimson, a former police officer, for recovery of a lump sum payment claimed to be due to him under the provisions of Annexure B to the Crown Employees (Police Officers Death and Disability) Award 2005. The New South Wales Police Force disputes Mr Stimson's entitlement to this benefit. 2 The parties agreed that the Award applied to Mr Stimson, but given the time at which he was injured, it was the transitional arrangements and clause 4.4, which were of relevance to this claim. Clause 4 of the Award provides: CLAUSE 4 - Coverage 4.1 This Award applies to all police officers with the following exceptions: 4.1.1 members of the Police Superannuation Scheme; and 4.1.2 members of the State Superannuation Scheme; and 4.1.3 to the extent identified in Clause 4.2 members of the State Authorities Superannuation Scheme who have Additional Benefit Cover and who do not elect to be covered for the Death and Total and Permanent Incapacity benefits under this Award. 4.2 Officers who are members of the State Authorities Superannuation Scheme who have additional benefit cover and who do not elect to be covered for the Death and Total and Permanent Incapacity benefits under this Award will not be entitled to the benefits of this award in relation to Death and Total and Permanent Incapacity. However, such officers will still be entitled to benefits covered by this award with respect to Partial and Permanent Disability. 4.3 Subject only to sub-clause 4.1, 4.4 and 4.5 this award applies to all police officers employed on or after 23 June 2005. Police officers must have been at work on or after that date performing normal duties for a continuous period of not less than 30 days to be eligible for benefits payable under this award in respect to pre-existing injuries or diseases. Transitional Arrangements These arrangements also apply to officers at work on 23 June 2005 who are participating in an agreed return to work program or who return to work after that date and participate in an agreed return to work program. 4.4 Police officers who have suffered an on duty injury and who are making genuine efforts to comply with an agreed Return to Work program shall be covered by this award provided that they participate in such a program for a period equivalent of 3 months of their full time service, subject to the determination of the Committee referred to in subclause 4.5. 4.5 A committee comprising a representative of NSW Police, the Association, the NSW Police Ministry and a person agreed between those parties shall determine coverage of such officers in accordance with clauses 7 and 9 in the event of a medical discharge. 3 The Committee referred to in clause 4 considered Mr Stimson's claim, but refused it, having been advised in December 2005 by the then Northern Region Rehabilitation Officer, Mr Hyland, that Mr Stimson had been offered a return to work program, but that he was not on such a program. This advice reflected an understanding that the agreed Return to Work program referred to in clause 4 of the Award, was a program to return to work with the Police Force, not another employer. Even so, no mention was made in this advice of two relevant matters. Firstly, that Mr Stimson had returned to work at the Police Force on 13 and 14 July 2005 under an agreed return to work program. After the failure of that attempt, the return to work program continued and Mr Stimson had participated in a second agreed return to work plan, directed at obtaining employment with another employer in the public sector. He also successfully undertook retraining under that plan. 4 It was the applicant's case that properly understood, clause 4 of the Award contemplated that an 'agreed Return to Work program' could be a program which returned a police officer to work in the Police Force, or with another employer. It was the respondent's case that the program had to be directed to a return to work with the Police Force. 5 There were several other issues lying between the parties. The first, whether or not the Committee referred to in clauses 4.4 and 4.5 of the Award had any role in determining Mr Stimson's eligibility for the benefit which he claimed under the Award, or only a role in determining what that benefit was to be, if he was eligible. The next area of contention was whether or not the Court had any power to make the order sought, given the terms of the Award, having regard to the provisions made in clauses 10.7 and 12, which each contemplated a dispute as to eligibility being resolved by the Industrial Relations Commission of NSW, not the Court and the role of the Committee, as contemplated by clause 4. 6 Mr Stimson had sought to pursue a grievance in accordance with clause 12 of the Award, but it was not dealt with by the Police Force and these enforcement proceedings were brought. 7 One further matter which gave rise to some difficulty and which ought to be given attention by the Award parties and the Industrial Relations Commission, was that the Award refers in clause 9.3 to a police officer receiving rehabilitation/retraining consistent with agreed policies, which are annexed to the Award. The agreed policies referred to in clause 9 of the Award, were not, however, annexed to the Award, as made. They were not even tendered. It was the case for the Police Force, nevertheless, that it was its December 2003 Rehabilitation (Return-to-Work) Policy which was the subject of the Award parties' agreement. For his part, the applicant accepted and relied on that policy. 8 On 15 September 2006, Mr Stimson's employment was terminated by the Police Force, on the basis of a medical discharge. At issue, was whether in the circumstances leading up to his discharge, Mr Stimson's position satisfied the requirements of clause 4.4 of the Award, thereby entitling him to the benefit claimed. Mr Stimson's circumstances 9 The evidence showed that the relevant circumstances were: 2005 18 January - Mr Stimson commences sick leave, receiving ongoing medical and psychological treatment for psychological injury, after being medically assessed as unfit for work as a police officer. 2 February - Mr Stimson's workers' compensation claim filed (and later accepted). March - Mr Stimson first attends the rehabilitation provider to whom Mr Hyland refers him - Hills Street Occupational Rehabilitation Service - case manager Ms Strudwick. 7/8 March - Hills Street Initial Rehabilitation Assessment Report recommends vocational assessment to identify vocational options and to assist return to work planning, including development of return to work goal; continuing medical treatment; and Mr Stimson to commence gym based exercise program (later approved and undertaken). 22 March - Hills Street Vocational Assessment Report - further counselling recommended, but no return to work program. April to June - Hills Street Interim Assessment Report - noting medical advice that Mr Stimson is unlikely to be able to return to police work, but Mr Stimson wishes to return. Recommendations were that medical treatment continue; further vocational training to establish a return to work goal; training needs to be identified; gym program to continue. 23 June - Hills Street Vocational Counselling Summary Report - advice that Mr Stimson's return to work plan should include the broader alternative vocational goal of public servant. (Mr Stimson, in fact, looks at such possible employment and receives assistance in preparing for pursuit of such work.) 24 June - medical advice received that Mr Stimson is fit to perform suitable administrative duties, two shifts per week, 8 hours per shift, with a condition of no involvement with accident reports or collisions. Late June - Mr Hyland became aware of Mr Stimson's desire to return to non operational police duties. 13 and 14 July - Mr Stimson returns to police work on restricted duties, in accordance with a 'suitable duties plan', performing administrative work similar to that which he previously performed. Mr Stimson became distressed at work, over a police radio broadcast about a fatality involving two teenagers. July - Mr Stimson seeks, but is refused approval, to work at the Police Assistance Line, consistent with his then medical advice. 19 July - Mr Stimson returns to sick leave. 8 June to 19 July - Hills Street Interim Assessment Report, noting Mr Stimson did not wish to pursue medical discharge without exhausting all means to return to his pre-injury vocation; he wanted to attempt suitable duties to test his level of recovery. Medical advice after Mr Stimson's attempt at restricted duties work, that further return to police work of any kind was detrimental to his health and he accepted, as a result, that a return to the Police Force was not feasible. It was recommended that a return to work plan be developed with a goal of employment in the public service and a work trial be explored, to assist him to attain a different job. July to September - Hills Street Interim Report advises that rehabilitation in support of alternate vocation cannot proceed until it is established if Mr Stimson's medical discharge is to proceed, but notes that Mr Stimson is job seeking. 4 October - 'Return to work plan: different employer/different job' provided to Police Force and Mr Stimson, by Hills Street. 13 October - Plan approved by Mr Hyland for Police Force (and accepted by Mr Stimson). September to October - Hills Street Rehabilitation Progress Report No. 1 notes HealthQuest assessment to recommend medical discharge; permission is required from Police Force for Mr Stimson to commence 'Return to work plan: different employer/different job'; endorsement received from treating doctor 5 October and Mr Hyland 13 October. Recommendation is for Plan to proceed. 4 November - HealthQuest recommends Mr Stimson's medical discharge and Mr Hyland is advised. October to November - Hills Street Rehabilitation Progress Report No. 2 notes that Mr Stimson commenced Certificate IV in Occupational Health and Safety at TAFE (later completed successfully). 9 December - Mr Hyland completes Evaluation Monitoring Committee questionnaire advising that Mr Stimson is permanently unfit for police work and is not undertaking a return to work program. 2006 January - Mr Stimson's solicitors advise Police Force that he does not wish to pursue a medical discharge and seeks the opportunity to undertake rehabilitation program to return to his employment with Police Force. Ms Nelson, Local Area Manager Lower Hunter Local Area Command recommends this request be referred to Medical Discharge Co-ordinator, noting that medical advice is that Mr Stimson is no longer able to continue his police career and that given a failed rehabilitation attempt, it was 'fruitless to continue a police rehabilitation program. The Command does support a rehabilitation program towards a different career path'. 6 February - Mr Jackel, Director Health Services of the NSW Police Service writes to Mr Stimson advising that he has been assessed by the scheme insurer as not being eligible for automatic coverage by the Award, but that he had been assessed as being covered by the Award transitional provisions. He is advised of the Committee established to assess the progress of such members against the Award criteria and invited to contact the Death and Disability Administration Unit, if he believed that he was able to satisfy the criteria. 9 March - Hills Street Occupational Rehabilitation Service informs Mr Stimson his case is closed and any ongoing monitoring is to be undertaken by insurer Allianz. 9 March - Hills Street Closure Report advises that Mr Stimson is regularly, independently job seeking and requires no further assistance, so that his rehabilitation case is to be closed. Only if he experiences difficulty securing employment, should consideration be given to further vocational assessment. 10 March - Medical Discharge Co-ordination Unit provides Mr Hyland with a submission for medical discharge of Mr Stimson prepared by Superintendent Mark Holohan, Local Area Commander, noting that his condition is likely to prove permanent; he was unable to perform the inherent requirements of the position of Sergeant and this was likely to continue for the foreseeable future. A report as to 'any rehabilitation intervention provided by the NSW Police' was sought from Mr Hyland. March - Mr Stimson is offered a Probationary position as Assistant Regional Occupational Health and Safety Co-ordinator by the Department of Defence. 24 March - approval sought by Mr Stimson from Police Force for secondary employment with the Department of Defence. 8 May - Mr Hyland prepares a rehabilitation report for Mr Stimson's medical discharge. Mr Hyland advises of the Return to Work Plan under which Mr Stimson attended for restricted duties at Maitland Police Station on 13 and 14 July. This was unsuccessful. Numerous attempts made by Mr Hyland and Hills Street to return Mr Stimson to restricted duties, but due to he 'never being able to obtain any other certification than not fit for any type of Police duties this has never been an option'. Mr Hyland notes that Mr Stimson did attempt limited return, but now accepted that he 'will not return to Policing duties and he can apply himself more positively to an alternate career path'; that his treating doctor and psychologist were confident that he could perform full time work away from the NSW Police and that 'he has been compliant and actively participated in all aspects of Rehabilitation' and that he should be 'submitted for medical discharge so the Vocational redeployment can commence'. 15 May - Mr Stimson commences work as Assistant Regional Occupational Health and Safety Co-coordinator, Department of Defence. 19 May - Mr Hyland advises Mr Chan, Human Resources Officer at the Police Force that he could not support Mr Stimson's application for secondary employment, taking the view that he applied for and 'obtained the position with the Dept of Defence on his own merit, it was not a structured Return to Work Plan' and 'This is not a work trial in a Rehabilitation sense'. 19 May - Mr Stimson's application for secondary employment refused by Police Service. 5 June - Hills Street Rehabilitation Report notes Mr Stimson has commenced employment with Department of Defence on 3 month trial, but was refused approval for secondary employment by Police Force, because Mr Stimson did not want to disclose nature of his injury to Department of Defence. Medical discharge being pursued from Police Service. 20 July - Hills Street Group Case Closure Report notes Mr Stimson 'successfully completed the current RTW Plan, and was monitored for a 4 week period on the final stage of the plan, whilst employed in his new work role.' 11 July - Ms Marathe, Claims Officer with the Death and Disability Administration Unit asks Mr Hyland if Mr Stimson has been contacted in relation to a case conference. 13 July - Mr Hyland advises Ms Marathe that all rehabilitation options for Mr Stimson 'were exhausted prior to him obtaining work with the Dept of Defence in May this year'; his work with the Dept of Defence was not a work trial and he does not qualify for 'D/D' and should be discharged as soon as possible. 14 July - Mr Hyland advises Ms Marathe that there is no need for a case conference. 15 August - Mr Stimson accepts full time position with Department of Defence. 23 August - Medical Discharge Review Panel recommends medical discharge. 12 September - Mr Egan, Executive Officer of the Death and Disability Unit Evaluation and Monitoring Committee advises Mr Stimson that his representations were considered by the Committee on 26 August, but it determined he was not eligible for coverage under the Award, 'as you have been unable to comply with the transitional provisions of clause 4 of the Award'. Attention was drawn to the Award dispute settlement mechanism. 12 September - Mr Driscoll, Commissioner's Delegate writes to Mr Stimson, advising that Medical Discharge Review Panel recommendation has been accepted. 15 September - date of Mr Stimson's discharge by Police Service. 2007 3 May - Mr Stimson's solicitors advise the Death and Disability Unit Evaluation and Monitoring Committee of Mr Stimson's grievance under clause 12 of the Award and seeks initiation of the process. 12 September - Mr Stimson's solicitors seek the advice of the Death and Disability Unit Evaluation and Monitoring Committee as to the status of Mr Stimson's grievance. 19 September - Mr Stephenson Manager, Compensation and Insurance Branch NSW Police Force, advises that the 'matter has been considered and the initial stages of the grievance procedure complied with' and seeks clarification of whether Mr Stimson sought 'a initial meeting' and what remedy he pursued. 2008 31 March - these proceedings commenced. Consideration What happened to Mr Stimson? 10 There is no issue that Mr Stimson, formerly a sergeant in the Highway Patrol, predominantly performing normal patrol duties, as well as some administrative duties in respect of the team for which he had responsibility, suffered an 'on duty injury' in January 2005. The Award definition provides: " on duty injury " in relation to a police officer means, injury to a police officer in such circumstances as would, if the police officer were a worker within the meaning of the Workers Compensation Act 1987, entitle the police officer to compensation under the terms and provisions of that Act. 11 Mr Stimson subsequently participated in a rehabilitation and retraining program, for which Mr Hyland had responsibility. Given his injury, it was also common ground that Mr Stimson was 'partially and permanently incapacitated' as defined in clause 3 of the Award, as: " partial and permanent disability " means the police officer's cessation of employment was substantially due, directly or indirectly, to the permanent physical or mental disability of the police officer (not caused by any act or default of the police officer intended to produce an injury leading to that disability) and that the police officer is, when the police officer ceases to be employed by NSW Police, permanently unable, by reason of that disability, to perform the duties that the police officer was required to perform before the police officer suffered the disability. 12 Mr Stimson wanted to pursue his career with the Police Force and tried to do so in accordance with an agreed return to work plan, after 23 June 2005, attending work on 13 and 14 July 2005. This attempt was not successful, given his injuries and so, in accordance with the Police Force's Rehabilitation Policy, a return to work plan with another employer was developed, approved and implemented. Both the Police Force and its insurer approved the second plan and in accordance with the plan, Mr Stimson successfully undertook training at TAFE, which eventually enabled him to secure employment with the Defence Department, for which this training had qualified him. 13 In order for Mr Stimson to accept the probationary employment which he was offered, he sought approval of the Police Force for secondary employment. The policy was not in evidence, but it was common ground that such approval was required to be obtained by a police officer who wanted to take up other employment, while on sick leave. 14 Consistently with the Rehabilitation Policy in evidence, the Police Force ought to have supported Mr Stimson in March 2006, by approving his secondary employment, so that the goal of a timely return to employment could be achieved. At that point, Mr Stimson's medical advice that he was unfit ever to return to work at the Police Force had been accepted by HealthQuest, which had recommended his medical discharge. All that was to be done was for the HealthQuest advice to be formally dealt with by the Police Force, so that his medical discharge could be effected. 15 Ostensibly, the Police Force was supporting Mr Stimson's pursuit of other employment. It ought to have done so practically, given also its Standard Operational Procedures for Injury Management, which were also in evidence. They, too, contemplated that some injured police officers would have to seek suitable employment with other employers. Mr Hyland, as Mr Stimson's Return-to-Work co-ordinator, was obliged to remain involved in the case until the point of return to employment. The Policy also relevantly provided: Following completion of the case review and in consultation with the treating medical practitioner, Commander/Manager/Supervisor, insurer and union (if appropriate), a decision will be made on the likelihood of the injured employee returning to pre injury employment within NSW Police. The following options will be available: 1. The injured employee is likely to return to pre injury or other employment with NSW Police on the condition of additional treatment and occupational rehabilitation. In such cases, the RTW Co-ordinator should recommence the structured injury management review process in accordance with a revised Return-to-Work Plan and in consultation with the injured employee, Commander/Manager/Supervisor, treating medical practitioner, insurer and union (where appropriate). If the injured employee remains incapacitated at 26 weeks after the date of injury a further case review will be organised. 2. The injured employee is unlikely to return (sic) pre injury or other employment with NSW Police due to a permanent and partial incapacity. Where the case review suggests an unlikely return to pre injury or other employment with NSW Police due to a permanent and partial incapacity the RTW Co-ordinator should ensure that NSW Police organises a HealthQuest appointment for the injured employee. This will facilitate the medical discharge process. At this stage the RTW Co-ordinator should also ensure that a referral is made by the insurer for the injured employee to attend an appointment with a rehabilitation provider for a vocational assessment which will clarify vocational options available. Once an option has been agreed upon and the medical discharge of the injured employee finalised, the rehabilitation provider will manage the return-to-work and vocational retraining process. The RTW Co-ordinator should continue to monitor the rehabilitation provider's performance to ensure appropriate return-to-work goals and to prevent over servicing. The RTW Co-ordinator will usually remain involved in the case until the point of a return to employment. 16 On any view, the way in which the Police Force's secondary employment policy was implemented in Mr Stimson's case, coupled with the Police Force's delay in dealing with the HealthQuest November 2005 advice, that Mr Stimson should be medically retired, ought not to have operated so as to frustrate the obligations imposed upon the Police Force in relation to Mr Stimson by the Award and by the provisions of the Workplace Injury Management and Workers Compensation Act 1998. This obliged the Police Force to assist Mr Stimson to return to employment suitable to him, given his injuries. Mr Hyland's explanation that secondary employment was not approved for Mr Stimson, because the job at the Department of Defence was not taken up as a 'work trial', shed no real light on the refusal. The approved Return to Work Plan did not require such a trial, nor did the policy. The aim of the agreed plan was to help Mr Stimson into other employment. That was what he was offered by the Defence Department in March 2006 and what he wished to accept. 17 The Rehabilitation Policy was the mechanism whereby the Police Force sought to meet the obligations imposed upon it by the Workplace Injury Management and Workers Compensation Act. The Policy was also intended to have the force of the Award. The Policy itself acknowledged that 'there is an ethical and moral obligation on NSW Police as an employer to, where practicable, assist an injured employee in returning to pre injury employment or obtain alternative employment'. Regrettably, in the case of Mr Stimson, that obligation was not honoured. There was no evidence from which it could be concluded that it was not practicable for Mr Stimson's request for secondary employment to be approved. 18 When Mr Stimson obtained an offer of probationary employment from the Department of Defence, Hills Street had already ceased providing him with rehabilitation assistance, having come to the view that such assistance was no longer necessary, given his then pursuit of employment, which it was expected that he would achieve without further assistance. That was what Hills Street advised the Police Force and the Insurer, who accepted the advice. The correctness of that view was confirmed when Mr Stimson successfully obtained an offer of suitable employment, shortly afterwards, which he was happy to accept. Mr Stimson still works in that employment today. The Plan entirely achieved its aim and that of the Workplace Injury Management and Workers Compensation Act. 19 In those circumstances, the refusal of approval of secondary employment in May 2006, while HealthQuest's November 2005 advice that Mr Stimson should be medically discharged was processed by the Police Service, is entirely inexplicable. By that stage, all of the medical advice was that Mr Stimson had no prospect of a return to the Police Force; he had accepted that view, albeit reluctantly, so had the Police Force itself, at least so far as Mr Hyland and other officers were concerned. Mr Stimson had been successfully retrained and had received a suitable offer of employment which he wished to accept. 20 While it was Mr Hyland's evidence that he did not himself make the decision to refuse secondary employment, it was a decision plainly made on his advice. The decision maker was not called. The advice was inexplicable, given the circumstances. 21 Indeed, why it was that it still took until September 2006 to process Mr Stimson's medical discharge, is also inexplicable. Had approval been attended to promptly, once HealthQuest's advice had been received in November 2005, there would have been no impediment to Mr Stimson accepting the offer he received in March 2006. In any event, the Police Force should plainly then not have put any impediment in the way of Mr Stimson accepting that position, even though its prolonged medical discharge process was still underway. 22 Mr Stimson successfully completed the probationary period with the Department of Defence and remains in its employment today. On any view, Mr Stimson's return to work plan was entirely successful and should have been supported, if the Police Force was truly to meet its statutory and Award obligations. The proper construction of clause 4.4 of the Award 23 I turn then to the proper construction of the Award. 24 Like many awards, this Award was made by consent, reflecting that it is the product of an agreement reached by the Award parties. The controversy in this case, as to the proper meaning of clause 4 of the Award, reflects that there is some ambiguity in its drafting. How such questions of construction are to be resolved is well settled, as recently discussed by a Full Bench of the Commission in Director of Public Employment by her agent the Commissioner of New South Wales Fire Brigades and New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158 particularly at [46] - [47] 46 Whilst awards are instruments to be construed according to the terms of the Interpretation Act, consideration should be given to the differences between statutes and awards. Some of these differences were referred to by Street J in Bond v McKenzie: But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. 47 Nevertheless, it would be untenable to attempt to construe the terms of an award according to the subjective intentions of the parties if, in doing so, it resulted in an unreasonable and unnatural construction having to be placed on the words of the award. In interpreting the provisions of an award the intention of the drafters must be ascertained by reference to the actual words used (and those words should be given their plain, ordinary meaning), thereby disclosing the underlying purpose or object of the award and its context, using that term in its broadest sense, including extrinsic material. Thus, attention must at all times be given to the meaning and effect of the award as it appears from the plain and ordinary meaning of the words used: see Zoological Parks at [43]. It is not permitted to attach to a provision of an award a meaning which the words of the award cannot reasonably bear: Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 at 321 (per Mason and Wilson JJ). 25 The underlying purpose or object of this Award, must be discerned from the entirety of the Award, including the provision expressly made in clause 1 - Introduction, Intentions and Commitments, which provides: 1.1 This Award shall be known as the "Crown Employees (Police Officers Death and Disability) Award 2005". 1.2 The intentions and commitments of this Award are to: 1.2.1 Provide benefits on medical discharge in the event that an on duty or off duty injury results in the death or total and permanent disablement or partial and permanent disability of a police officer. 1.2.2 Provide rehabilitation and retraining in the event that an on duty or off duty injury, results in a police officer suffering partial and permanent disability. 1.2.3 Develop and implement an agreed WellCheck Program for police officers. 1.3 This Award shall be in four parts as follows: Part A - Introduction, Intentions and Commitments, Index and Definitions. Part B - Arrangements for police officers entitled to the death and disability benefits prescribed by this Award. Part C - WellCheck Program. Part D - Disputes, Anti-discrimination, Leave Reserved and Area, Incidence and Duration. 26 This makes clear that the Award is directed to providing rehabilitation and retraining, as well as benefits on medical discharge, for police officers who suffer an injury, including those who are unable to recover sufficiently to permit them to return to any duties in the employment of the Police Force. So much is further confirmed by the Award definitions of 'partial and permanent disability' and 'total and permanent disablement'. 27 Had Mr Stimson suffered his injuries after the making of the Award in December 2005, after 23 June 2005, the date referred to in clause 4.3, instead of in January 2005, there is no question that he would have had an entitlement under the Award, given the provisions of clause 4.3. 28 It was because Mr Stimson, who was injured in January 2005, was not at work on 23 June 2005, albeit employed then, that he fell outside clause 4.3. That date is referred to in the introductory words of the 'Transitional arrangements' provided in clause 4, giving rise to a question as to whether or not Mr Stimson falls within the provision made in clause 4.4. Mr Stimson was then on sick leave. The grounds and reasons given by the Police Force when applying for the making of the Award, indicated that some 89 police officers had not been accepted by the insurer for initial coverage under the Award and that the 'industrial parties recognise that the Award does not extend to long term sick police officers as at 23 June 2005 and are not actively participating in a return to work program'. Mr Stimson was one of these officers. 29 The Award transitional arrangements also recognised, however, the possibility that Mr Stimson could be covered by the Award, if he returned to work after 23 June and participated in an agreed return to work program. That was what he was later expressly advised. 30 On the evidence, there is no doubt that Mr Stimson returned to police work after 23 June 2005, in accordance with an agreed return to work program. In accordance with that program, he performed 'normal duties' on 13 and 14 July, defined in clause 3 definitions of the Award as: " normal duties " means performing the duties for which the police officer has been principally employed", including restricted duties for the purposes of subclauses 4.3, 4.4 and 4.5. 31 Regrettably, those duties exacerbated Mr Stimson's injuries, leading to medical advice that he would not ever recover sufficiently from his injuries, to permit him to return to police work. Thereafter Mr Stimson participated in a second, albeit this time successful return to work plan - the 'Return to work plan: different employer/different job' produced by Hills Street, the rehabilitation provider to whom the Police Force had referred him. Mr Hyland, on behalf of the Police Force, approved of that plan in October 2005. There can be no doubt that this was a part of Mr Stimson's overall return to work program. This accorded with the Police Force's Rehabilitation (Return-to-Work) Policy, which in its introduction provides that: The primary goal of these programs is to assist employees to return to their pre injury duties in a safe and durable manner. Where the employee's medical condition or the availability of suitable duties precludes a return to pre injury employment, return-to-work options such as other suitable employment within NSW Police need to be considered. If this is not reasonably practicable, then the option of suitable employment with another employer will be(sic) need to be addresses. Hence, the rehabilitation or return-to-work options can be summarised as follows: 1. return to pre injury employment; or 2. suitable employment with the same employer; or 3. suitable employment with another employer. 32 The system described on page 3 of the Policy in a flow chart, expressly includes a RTW (return to work plan) developed by a RTW Co-ordinator such as Hills Street, which specifies amongst other things, RTW Objectives/goals with outcomes of: 1. Return to Pre Injury Employment 2. Suitable Duties with same Employer (NSW Police) 3. Suitable Duties with Another Employer (Vocational Retraining) 33 Part 1 of the Policy concerns itself with a 'Rehabilitation Program', which again identifies objectives of return to primary employment with the Police Force, or other suitable duties with the Police Force, or other suitable duties with another employer. Part 4, the Injury Management Plan, has as an objective, a timely, safe and durable return to work consistent with the injured employee's medical condition. Part 5, the Return to Work Plan, requires individual plans to be prepared, monitored and upgraded, 'as the workplace injury improves'. Part 6, Suitable Employment, again refers to the 'hierarchical goals' of the return to work program as: § return injured employees to their pre injury employment; or § where practicable, provide suitable employment within NSW Police; or § where the provisions of suitable employment within NSW Police is not reasonably practicable, provide injured employees with vocational retraining in order to assist them to obtain suitable employment with another employer. In most instances, injured employees will be able to return to their pre injury employment. In such cases, NSW Police will establish a return-to-work plan with respect to agreed policies and procedures for the rehabilitation of these employees and the plan will be consistent with the injury management program of the insurer. In cases where a return to pre injury employment is not reasonably practicable, NSW Police will endeavour to provide the injured employee with suitable employment within the Service. Where this option is not reasonably practicable, NSW Police will assist the employee to be vocationally redirected to suitable employment with another employer. Vocational redirection and if necessary the vocational retraining of injured employees will be consistent with the injury management program of the insurer. 34 It is entirely apparent from any fair reading of this Policy, intended to be a part of the Award scheme by express annexure, that it is not concerned only with a return to work with the Police Force, but also contemplates that there will be cases where that is not possible and a return to work in other employment must be pursued by an injured police officer. In Mr Stimson's case, in May 2006, in accordance with the intent of this policy, he returned to work at the Defence Department. 35 On the face of the words used in clause 4 under the heading, Transitional Arrangements, Mr Stimson, unarguably, returned to work after 23 June 2005 and also participated in an agreed return to work program. 36 In the words of clause 4.4, Mr Stimson also 'suffered an on duty injury'; he made 'genuine efforts to comply with an agreed Return to Work program' as Mr Hyland himself reported in 2006, including returning to police work in July according to the plan, which resulted in his unsuccessful attempt to perform police duties on 13 and 14 July. Mr Stimson then made genuine efforts to comply with the second plan, which involved him in retraining and finally succeeded in returning him to work with another employer in March 2006. 37 Mr Stimson plainly participated in an agreed return to work program for a period of over three months of full time service, however such a period is calculated - by calendar or hours worked for such a period, as clause 4 also required. 38 Nevertheless, the Police Force argued that clause 4.4 must be read as having intended to refer only to Return to Work programs leading to a return to work with the Police Force, may not be accepted. I am unable to accept that argument, for the following reasons. 39 Firstly, had such a limitation been intended by the Award parties, they could easily have said so directly in the clause which they drafted. That this was not what they intended, flows not only from the words which they used in clause 4.4 itself, which does not contain such a limitation, but also from the provisions of clause 1 of the Award, to which I earlier referred, which also does not contain such a limitation. To the contrary, it expressly contemplates work elsewhere. This construction also finds support in the Rehabilitation Policy intended to be annexed to the Award, which also expressly contemplates a return to work for some police officers will necessitate employment with another employer, given the nature of their injuries. 40 Finally, the same conclusion is supported by clause 9 of the Award, which obliges police officers to accept suitable police positions which they are offered, with a failure to accept one of three reasonable positions, jeopardising the Award benefits (clause 9.2). Clause 9.3 then expressly contemplates that some police officers may not be able to return to the Police Force, providing: 9.3 A police officer who suffers an on duty injury shall receive rehabilitation/retraining consistent with agreed policies, which are annexed to this award, leading to a return to pre-injury employment wherever possible. 9.3.1 Where a return to pre-injury employment is not possible, as determined by HealthQuest, or other medical assessor agreed by the parties, the officer will be declared as suffering a partial and permanent disability and opportunities for placement in a suitable police position or as a permanent restricted duties police officer will be sought. At the same time, the police officer, with their consent, will be considered for redeployment to an administrative officer position. 9.3.2 If placement in a police position within the NSW Police is not possible and redeployment to an administrative officer position is not agreed to by the officer, the employment of the police officer may be terminated. In such circumstances the police officer, subject to eligibility being established, shall be paid a lump sum payment in accordance with Annexure B to this Award. 41 Clauses 9.5 and 9.6 also expressly contemplate that in some cases, medical discharge must result. It is entirely a part of this Award scheme that a return to work in employment other than with the Police Force, must occur in some cases. Clause 4.4 must be construed consistently with the intent and purpose of the Award as a whole. The words used in clause 4.4 are capable of a construction consistent with that purpose. To read the plain words used thereby implying a limitation which the parties did not expressly agree, would not be consistent with that overall purpose. 42 The only question which remains in relation to the proper construction of clause 4.4 is what the final words in clause 4.4, 'subject to the determination of the Committee referred to in subclause 4.5' mean. 43 Again, I am unable to accept the argument of the Police Force, that this reference to the Committee in clause 4.4, is to give the Committee a discretion to deny eligibility to a police officer who satisfies all of the preceding expressly stated requirements of clause 4.4. Such a construction would give an extraordinary power to the Committee, unconstrained by anything in the Award, which would guide the exercise of such a discretion. The consequences of such a construction must also be considered in determining the proper meaning of the words used. It seems to me entirely unlikely that the parties, having expressly agreed on how a police officer's eligibility under clause 4.4 would be established, intended also to give the Committee an unfettered discretion, to deny such a police officer the entitlement otherwise granted by the Award, to a significant benefit. 44 Also to be considered, is the scheme of the Act, which empowers the Commission under s 10, to make awards 'setting fair and reasonable conditions of employment for employees'. It would seem entirely unlikely that the Commission would be asked to make an award, seemingly so unfair on its face. The construction urged would permit entirely capricious decisions to be made by a Committee which has no obligations even to explain the reasons for its decision. 45 That is a construction which the Court would be slow to accept given that what is at issue is beneficial award provisions, of obvious importance to police officers who are injured in the performance of their duties. Such a provision must be construed beneficially. Another obvious meaning to be given to the words in question, consistent with such a construction, is that the work which they perform is to draw attention to the Committee's role under clause 4.5, in determining what benefit, if any, a police officer is to have, in accordance with clause 9 of the Award. This approach to the construction of clause 4.4 is supported by the mechanism established by clause 9, which is one whereby a police officer who otherwise has eligibility to the benefits of the Award provided by clause 4.4, may lose his or her benefit, as the result of the Committee's decision. 46 Such an outcome particularly flows from the provisions made in clause 9 in relation to the mutual obligation of the police officer and the Police Force, to identify suitable positions for redeployment and the responsibility placed on the officer 'to accept a reasonable offer of a suitable police position made by the employer, which may include transfer to another location' (clause 9.2). A failure to do so may result in the loss of the benefits provided by the Award, in clause 9.3. 47 An award mechanism such as this, whereby a Committee comprising representatives nominated by the Award parties is given the task of determining whether a particular officer and the Police Force have met the obligations imposed upon them by the Award and whether, in the case of a police officer, the officer has failed to adhere to those obligations, with the result that the award benefits are lost, is an understandable and fair mechanism to deal with a potentially contentious issue such as this. 48 I am well satisfied, therefore, that the proper construction of the Award is that the reference to the Committee in clause 4.4, is to draw attention to its function under clauses 4.5 and 9, which may result in the loss of benefits by a police officer who otherwise satisfies the criteria established for eligibility, by clause 4.4. The Committee is given a role in determining what benefits, if any, an officer who satisfies the eligibility criteria established by clause 4.4 is to have, but is not otherwise given a discretion to exclude from eligibility an officer who satisfies the clause 4.4 criteria. 49 This conclusion is reinforced by a further consideration. It was also argued by the Police Force that these proceedings were in effect a nullity. This was because the Committee had made a decision under clause 4.4 that Mr Stimson had no eligibility to the benefits provided by the Award, and that there was no recourse to the Court under the Act in enforcement proceedings such as these, that effectively being an appeal from such a decision. While initially also arguing that there was no appeal of any kind provided for by the Award; and from a decision of the Committee under clause 4.4, it was accepted by the Police Force that there was recourse to the Industrial Relations Commission, in the event of a dispute over a decision of the Committee, in accordance with clause 12 - Grievance Mechanism. As was pointed out for Mr Stimson, clause 10.7 of the Award also provides: Entitlement to the benefits to be provided by NSW Police pursuant to this Award shall be assessed by NSW Police. Any dispute as to the entitlement of a police officer to receive a benefit under the terms of this award (whether lump sum entitlement or otherwise) may be referred to the Industrial Relations Commission of New South Wales for determination. 50 Again, I am unable to accept the argument of the Police Force as to the construction of the Award. The scheme of the Act contemplates that in the event of a failure to pay to an employee what is due under an Award, an industrial court has power to deal with such an award breach. Section 365 of the Act provides: Order for recovery of remuneration and other amounts payable under industrial instrument An industrial court may, on application, order an employer to pay any amount payable under an industrial instrument that remains unpaid to the person to whom it is payable. 51 A construction of an award which would avoid the statutory award enforcement scheme established by the Act, is obviously one not lightly to be preferred over a construction which permits employees to exercise enforcement rights which the Legislature sought to grant them. This, too, lends weight to the conclusions which I have otherwise reached. I am satisfied that this Court has jurisdiction to consider the proper interpretation of clause 4.4; to conclude that Mr Stimson was eligible for a benefit under the Award given the proper construction of clause 4.4 and that nothing which he had done disentitled him from receiving that benefit, given the provisions of clause 9. Conclusions 52 The difficulty which has here emerged is that the Police Force has taken a wrong view of the proper construction of the Award. The result was that the Committee was wrongly advised by the Police Force that Mr Stimson had not satisfied the requirements of clause 4.4 of the Award, which made him eligible for Award benefits. Mr Stimson had that entitlement because he had returned to work after 23 June 2005 and participated in a return-to-work program for the requisite period. Even given the construction of the Award on which the Police Force was proceeding, entirely inadequate advice was given to the Committee as to Mr Stimson's participation in a return-to-work program of 23 June 2005. Regrettably, even when Mr Stimson sought to engage the Award dispute resolution mechanism as he was entitled to do, his notification did not result in any proper or timely attention being paid by the Police Force to the issues he sought to raise. That dispute was simply unaddressed in any real or effective sense. 53 The result was that the Committee never gave any consideration as to Mr Stimson's entitlements under clause 9, nor did the Police Force properly assess his award entitlements. On the evidence in these proceedings, Mr Stimson has demonstrated that he met the obligations there imposed upon him, to identify suitable positions in the Police Force; to pursue an agreed return to work plan with the Police Force, he actively performed suitable duties in July 2005 and when that was unsuccessful, given his medical condition, he pursued employment elsewhere in accordance with a second approved return to work plan, devised under his return to work program. That attempt was successful despite the failure of the Police Force to approve his request for secondary employment, as it should have done, given its Legislative and Award obligations, while his medical discharge application was processed. In May 2006, he accepted work with the Department of Defence, where he remains employed. 54 On the evidence nothing which Mr Stimson did disentitled him to any benefits under the Award. Clause 10.7 of the Award expressly contemplates that entitlement to benefits under the Award are to be assessed by the NSW Police. It failed to make that assessment, given its approach to the proper construction of the Award. 55 There was no issue raised by the Police Force as to the proper calculation of the money sum claimed by Mr Stimson, if his argument as to his entitlement under the Award was accepted. 56 What was accepted for Mr Stimson, however, was that because of the Police Force's erroneous view as to the proper operation of the Award, Mr Stimson did not meet the obligations imposed upon him by clause 5 of the Award - to contribute 1.8 per cent of his salary to the NSW Police. This was a contribution he accepted should be attended to. It follows that the parties should be given an opportunity to make the necessary calculations as to what should be paid to Mr Stimson and to agree on the orders which should be made, to reflect the conclusions reached. 57 The matter will be relisted on 10 November 2008. Draft orders should be filed by 4pm, on 7 November 2008 . ------------------------ 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.