Industrial Relations Commission New South Wales Medium Neutral Citation: Wright and Commissioner of Police [2013] NSWIRComm 77 Hearing dates: 22 August 2013 Written submissions: 29 August 2013; 6 September 2013 Decision date: 16 September 2013 Jurisdiction: Industrial Relations Commission Before: Staff J Decision: The application to amend save in respect of ground 8 is refused. Catchwords: Application for review - Police Act - applicant seeks to amend application - amendment not part of Order - application refused - s 173, s 174 Police Act 1990, s 170 Industrial Relations Act 1996 Legislation Cited: Industrial Relations Act 1996 Police Act 1990 Category: Interlocutory applications Parties: Mr Grant Wright (Applicant) Commissioner of Police (Respondent) Representation: Counsel: Applicant self-represented Mr S Jauncey, Solicitor, appeared for Respondent Solicitors: Applicant self-represented Henry Davis York (Respondent) File Number(s): IRC 1190 of 2012 DECISION 1Grant Wright ("the applicant") seeks to amend an application filed by him on 28 November 2012 pursuant to s 174 of the Police Act 1990 ("Police Act"). This section enables a police officer to seek a review of an order made by the Commissioner of Police ("the respondent") or his delegate, in circumstances where a police officer has engaged in conduct which has resulted in reviewable management action being taken. 2The respondent opposed the application for amendment. Background 3On 28 September 2012, the applicant was served with a Notice under s 173(5) of the Police Act, inviting him to show cause why reviewable action should not be taken against him in the form of a disciplinary transfer. 4The Notice contended that the applicant: (a)allegedly disobeyed a direction to attend work and perform duties from 28 December 2011 to 30 December 2011; and (b)allegedly disobeyed directions on 24 May 2012 by the Shift Supervisor Senior Constable Joe Johanson to put his appointments (belt containing pistol, handcuffs, etc) back on as his shift was not completed. 5On 7 November 2012, Superintendent Adrian McKenna, after considering the applicant's response to an investigator's report into the allegations, made the following Order: In all the circumstances, I have formed the view that your misconduct has been shown to be improper and that you should be subject to the action proposed in the Notice. I therefore order the following action: That pursuant to s 173(2) of the Police Act 1990, you will be disciplinary transferred from Griffith Local Area Command to Lake Illawarra Local Area Command. 6Section 174 of the Police Act enables a police officer who is the subject of an order for reviewable action made under s 173 of the Police Act to apply to the Industrial Relations Commission of New South Wales ("the Commission") for a review of the order on the grounds that the order is beyond power or is harsh, unreasonable or unjust. 7Section 174(4) of the Police Act provides that: "An application may not be made by or on behalf of a police officer more than 21 days after the date on which written notice of the making of the order to which it relates was served on the police officer." 8It was common ground that the reviewable Order made by Superintendent McKenna on 7 November 2012 was served on the applicant on that day. 9On 28 November 2012, the applicant filed an application for review under s 174 of the Police Act. 10Pursuant to s 173(8) of the Police Act, the Order does not take effect for 21 days or, if an application for review is made, until the application is finally determined by the Commission. 11On 13 November 2012, Superintendent Michael Rowan advised the applicant that he had taken "interim management action requiring the applicant to undertake work at the Lake Illawarra Local Area Command". 12On 14 December 2012, a directions hearing occurred before Deputy President Harrison. These proceedings were delayed due to the applicant filing an application with the Administrative Decisions Tribunal alleging unlawful discrimination. 13On or about 18 December 2012, a dispute developed between the parties as to whether the applicant was entitled to certain payments under the Crown Employees (Police Officers - 2009) Award ("the Award") as a result of performing work at the Lake Illawarra Local Area Command. The applicant performed work at this Command until late March 2013 when the interim management action was withdrawn. The applicant was then rostered to perform duties at the Griffith Local Area Command. 14On 13 June 2013, a further directions hearing occurred before Deputy President Harrison. The matter was subsequently reallocated to the Commission as presently constituted. I chaired a conciliation conference between the parties on 22 August 2013, when the matter remained unresolved. At the commencement of the proceedings on that day, the applicant sought to amend his application. It was agreed that the Commission would determine the application on the papers. Relevant statutory provisions 15Relevantly, s 173 of the Police Act is found in Pt 9 Management of conduct within NSW Police Force and Division 1 Misconduct and unsatisfactory performance. Section 173(1) and s 173(2) provide as follows: "173 Commissioner may take action with respect to police officer's misconduct or unsatisfactory performance (1) In this section: non-reviewable action means action referred to in Schedule 1. [Schedule 1 lists as non-reviewable action a non-disciplinary transfer]. reviewable action means action referred to in subsection (2), other than non-reviewable action. (2) The Commissioner may order that the following action be taken with respect to a police officer who engages in misconduct: (a) a reduction of the police officer's rank or grade, (b) a reduction of the police officer's seniority, (c) a deferral of the police officer's salary increment, (d) any other action (other than dismissal or the imposition of a fine) that the Commissioner considers appropriate." 16Section 173(9) of the Police Act provides: (9) Except as provided by Division 1A: (a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and (b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section. In this subsection, tribunal means a court, tribunal or administrative review body, and (without limitation) includes the Industrial Relations Commission. 17Division 1A Review of Commissioner's Order under Division 1 of Part 9 deals with reviews generally and proceedings on a review. Section 174(1) and s 174(4) of the Police Act provide as follows: (1) A police officer in respect of whom an order for reviewable action is made under section 173 may apply to the Industrial Relations Commission (referred to in this Division as the Commission) for a review of the order on the ground that the order is beyond power or is harsh, unreasonable or unjust. ... (4) An application may not be made by or on behalf of a police officer more than 21 days after the date on which written notice of the making of the order to which it relates was served on the police officer. 18Section 176 of the Police Act requires the Commission to endeavour to settle any application by conciliation. Section 177 deals with the arbitration of any application. 19Section 179(1) of the Police Act deals with the application of the Industrial Relations Act 1996 ("the IR Act") which provides: (1) In the application of Part 5 of Chapter 4 of the Industrial Relations Act 1996 to proceedings under this Division, the provisions of sections 163, 167, 169 (4), 172, 181 and 184 of that Act do not have effect. Industrial Relations Act 1996 20Section 170 of the IR Act relevantly deals with amendments and irregularities and provides pursuant to s 170(1): (1) The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice. 21Section 170(2) of the IR Act (making amendments) provides: (2) Any such amendment may be made: (a) at any stage of the proceedings, and (b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs). Proposed amendments 22The applicant seeks to amend his application by inserting the following: "10. The Respondent has failed to comply with section 174 after the filing of the Review on 28 November 2012 by ordering the Applicant to commence duties at Lake Illawarra Local Area Command from 16th December 2012 until 24th March 2013. 11. The Respondent has failed to compensate the Applicant with associated entitlements as claimed pursuant to the Crown Employees (Police Officers - 2009) Award, namely travel allowances, mileage and travel time while deployed to a temporary work location. 12. The Respondent has failed to comply with Clause 5 of the Crown Employees (Police Officer - 2009) Award by discriminating the Applicant by use of the Industrial Instrument by so failing to pay associated entitlements as claimed pursuant to the crown employees (Police Officers - 2009) Award, namely travel allowances, mileage and travel time while deployed to a temporary work location." 23In addition, the applicant seeks to amend paragraph F.8 of his application so that the reference to "s 50 of the Police Regulation 2008" reads "s 53". The respondent submitted that this correction could be taken as read without a need for a formal amendment. I propose to deal with this amendment on that basis and delete the reference to "s 50" found in paragraph F.8 and insert "s 53". Consideration 24Section 170 of the IR Act is plain on its face. It provides the Commission with a discretion to make any amendments to proceedings that the Commission considers to be necessary in the interests of justice. In these circumstances, it is therefore appropriate to consider the terms of the amendments. 25The respondent strongly submitted that no matters about which the applicant seeks to complain in the amendments can be determined by the Commission in the exercise of its jurisdiction under s 174 of the Police Act. 26Section 174 of the Police Act gives this Commission jurisdiction to undertake "a review of the Order". 27The amendment sought in ground 10 is that the respondent has failed to comply with s 174 of the Police Act. 28In my view, s 174 of the Police Act does not provide jurisdiction to the Commission to conduct a review of conduct or lawful directions made by the respondent or his delegate which are not part of any Order. The interim management action occurred after the Order was made, pursuant to s 173(2) of the Police Act and after the application for review was filed. 29The respondent contends that the interim management action was not taken as reviewable disciplinary action under s 173 of the Police Act consequent upon any finding of misconduct. It contends that the transfer was non-disciplinary and is therefore a non-reviewable action. Such transfer was for a limited period. The reviewable Order was in respect of a permanent transfer. It was common ground that the applicant returned to perform duties at the Griffith LAC from late March 2013. In my view, and I find, the Commission has no jurisdiction to consider the applicant's contention in amended ground 10 in these proceedings, which are limited to whether the Order made was beyond power or was harsh, unreasonable or unjust. 30The principal complaint that the applicant makes in proposed amendments 11 and 12 are that the respondent has failed to pay the applicant entitlements claimed pursuant to the Award. The applicant bases his claim for reimbursement of entitlements upon s 177(2) of the Police Act. This section provides that "if the Commission revokes the Order, it may also direct the payment of compensation for any loss suffered by the applicant as a consequence of the making of the Order". 31The reviewable Order made on 7 November 2012 has not taken effect pursuant to the operation of operation of s 173(8) of the Police Act. In my view, the consideration of any entitlements the applicant may, or may not, have pursuant to the Award as a result of the interim management action taken by Superintendent Rowan, is not relevant to any review of the Order made by Superintendent McKenna. In these circumstances, and I find, this Commission has no jurisdiction to review the Order made by Superintendent Rowan in these proceedings. 32The complaint made in amended ground 12 falls into the same category. The applicant contends that the respondent has acted in breach of cl 5 of the Award by discriminating against him in failing to pay entitlements claimed pursuant to the Award, being travel allowances, mileage and travel time, while deployed to a temporary work location. 33I should also observe that the matters complained of in proposed grounds 11 and 12 occurred after the Order, the subject of these proceedings, was made. 34For the reasons expressed in respect of proposed amended ground 11, I also find that this Commission has no jurisdiction under s 174 of the Police Act to review the matters raised in ground 12. For these reasons, I refuse the application to amend. 35In the event that I am wrong in rejecting the amendments sought, for the reasons set out above, I would decline to exercise my discretion to permit the applicant to amend the application on the basis that the amendments are significant and constitute, in my view, a fresh application. 36Section 174(4) of the Police Act requires that any application for a review of an Order "may not be made by or on behalf of a police officer more than 21 days after the date on which the Order was served on a police officer". The legislature appears to be applying a strict time limit in respect of reviews. The Policy approach being, I assume, that such reviews should be dealt with promptly. 37As I have already observed, the Order the subject of challenge, was served on the applicant on 7 November 2012. The amendment is sought after a period of more than eight months has elapsed since service of the Order. In circumstances where the amended application raises significant and, as I have already found, issues not relevant to the Order the subject of review, I would decline to exercise my discretion. I have reached this conclusion taking into account the overall interests of justice between the parties. I would therefore also decline to grant leave to the applicant to amend his application in light of the provisions of s 174(4) of the Police Act. Order (1)The application to amend save in respect of ground 8 is refused. ********** 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. Decision last updated: 16 September 2013