Industrial Relations Commission New South Wales Medium Neutral Citation: Basan v Commissioner of Police [2020] NSWIRComm 1037 Hearing dates: Application determined on the papers Decision date: 18 May 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy on delegation from Full Bench Decision: Application by the Police Association of New South Wales for leave to intervene in the proceedings is granted Catchwords: APPLICATION FOR RELIEF FROM VICTIMISATION – motion by respondent to dismiss or set aside application – victimisation claim out of time – applicant not an 'employee' to whom ss. 210 and 213 apply – implied repeal/exclusive code – application by Police Association for leave to intervene granted Legislation Cited: Industrial Relations Act 1996 (NSW) Police Act 1990 (NSW) Cases Cited: NSW Commissioner of Police v Cottle [2019] NSWSC 1588 Re Laundry Employees (State) Award (No 2) [1993] 49 IR 91 Category: Procedural and other rulings Parties: John Basan (Applicant) Commissioner of Police (Respondent) Police Association of New South Wales (Intervener) Representation: The Applicant represented himself Mr M Seck of counsel (Respondent) Mr M Gibian SC (Intervener) File Number(s): 2020/00007514 DECISION 1. The matter before the Commission as presently constituted, on delegation from the Full Bench (Chief Commissioner Constant, Commissioner Murphy, Commissioner Sloan), is an application by the Police Association of New South Wales (Police Association) for leave to intervene in the substantive proceedings being a motion by the Commissioner of Police (respondent) to dismiss or otherwise set aside the Application for Relief from Victimisation filed by John Basan (applicant) on 6 January 2020 (victimisation application). 2. The intervention application by the Police Association is consented to by the applicant. The respondent neither consents to nor opposes the intervention application. Background 1. The applicant was a serving police officer having been attested as a probationary constable on 25 January 1991. 2. On 14 August 2019, the applicant filed in the Commission an application for Review of an Order made pursuant to s 173(2) of the Police Act 1990 (NSW) (Police Act). The order, which was the subject of the review application, imposed certain disciplinary action on the applicant. The details of that disciplinary action, and the reasons for it, are not relevant for present purposes. 3. The applicant was subsequently medically retired pursuant to s 94B of the Police Act with effect from 12 December 2019. The review application has been stood over generally pending the hearing and determination of two other applications which were made by the applicant on 6 January 2020. 4. The first of those two further applications is an unfair dismissal application pursuant to s 84 of the Industrial Relations Act 1996 (NSW) (IR Act). In that matter the respondent, on 17 February 2020, filed a Notice of Motion seeking an order that the applicant's unfair dismissal application be dismissed or otherwise set aside on the bases that the application was made out of time and that a medically retired police officer, such as the applicant, is unable to pursue an unfair dismissal application. 5. The applicant's unfair dismissal application and the respondent's motion have been stood over generally pending consideration by the Court of Appeal of the judgement of Simpson AJ in NSW Commissioner of Police v Cottle [2019] NSWSC 1588. That appeal by the Commissioner of Police is scheduled to be heard on 5 June 2020. 6. The second application, which was made by the applicant on 6 January 2020, is the victimisation application. In response to that application, on 17 February 2020, the respondent filed a Notice of Motion seeking an order that the applicant's victimisation application be dismissed or otherwise set aside on the grounds that the claim was made out of time; that the applicant was not an employee to whom ss 210 and 213 of the IR Act apply ('not an employee' submission); and, that the general provisions of the IR Act must give way to the specific provisions applying to sworn police officers in the Police Act ('implied repeal/exclusive code' submission). I will refer to this as the respondent's strike out application. 7. On 3 March 2020, I referred the applicant's victimisation application and the respondent's strike out application to a Full Bench of the Commission pursuant to s 193 of the IR Act. I also made directions for the filing and serving of evidence and submissions by the parties. 8. On 17 April 2020, the Police Association filed a Notice of Motion supported by an affidavit of Mr Anthony Howell, Assistant Secretary, Legal Services, of the association, seeking leave to intervene in the proceedings before the Full Bench to be heard on the 'not an employee' and 'implied repeal/exclusive code' submissions of the respondent. 9. The Full Bench has referred to me pursuant to s 193(3)(b) of the IR Act the application by the Police Association for leave to intervene in the proceedings. This decision deals with that application. Submissions of the parties 1. The applicant consented to the application for intervention by the Police Association. The Police Association and the respondent filed comprehensive written submissions. On 13 May 2020, the solicitors for the respondent notified the Commission that the respondent no longer pressed the 'not an employee' submission as part of the respondent's strike out application. This left, as the only matter for determination in this decision, the application by the Police Association for leave to intervene to be heard on the respondent's 'implied repeal/exclusive code' submission. Those parts of the written submissions of the Police Association and the respondent which are relevant to that issue are set out below. Police Association 1. The Police Association made the following submissions: 1. Mr Basan is a former police officer who was medically retired in December 2019. Prior to his medical retirement, Mr Basan was a non-executive police officer for the purposes of the Police Act 1990 ("the Police Act"). Mr Basan has made application alleging victimisation for the purposes of s 210 of the Industrial Relations Act 1996 ("the IR Act") alleging that his medical retirement was expedited as a result of him having brought proceedings under s 174 of the Police Act. 2. By notice of motion filed on 17 February 2020, the Commissioner of Police seeks an order dismissing or setting aside Mr Basan's victimisation application on three grounds, namely: (a) Mr Basan, as a police officer, was not an "employee" for the purposes of ss 210 and 213 of the IR Act; (b) The Police Act impliedly repeals or excludes ss 210 and 213 of the IR Act applying to police officers; and (c) The application is out of time. 3. The Commissioner's notice of motion has been referred to a Full Bench of the Commission, it is inferred, because it raises issues of importance and general application. The Association seeks leave to intervene so as to be heard with respect to the "employee" and the implied repeal issues. The Association relies on its notice of motion and the affidavit of Anthony Howell dated 17 April 2020. Principles to be Applied 4. The Commission possesses a broad discretion to grant leave for a person to intervene in proceedings: Re Cobar Mines Pty Ltd Consent Award 1995 (unreported, Industrial Relations Commission of NSW, Cahill J, No IRC 3305 of 1998, 21 August 1998); Re Operational Ambulance Officers (State) Award (2011) 207 IR 272 at [48]; Ambulance Service of NSW v HSU East [2013] NSWIRComm 48 at [23]. Whether a person is to be granted leave to intervene is a matter that lies within the discretion of the tribunal and the Commission will grant leave to intervene where "the justice of the case warrants" leave being granted: In re Plumbers and Gasfitters (State) Conciliation Committee [1936] AR (NSW) 341 at 346. 5. The approach generally adopted by the Commission is to ask whether a party has a sufficient interest in the proceedings, in the sense that it will be materially affected or bound by the outcome or such other sufficient interest to warrant its appearing in and being heard in the proceedings: Re Laundry Employees (State) Award (No 2) (1993) 49 IR 91 at 100. Leave will be granted as a "protective step" where necessary to ensure that the interests that the intervener has in the case is fully appreciated and adequately protected and is not prejudiced or placed in jeopardy: In re Special Constables (Police Department) Award [1956] AR (NSW) 880 at 885. 6. The Commission has long recognised the special position of industrial organisations in proceedings before it. In Re Laundry Employees (State) Award (No 2) (1993) 49 IR 91, for example, the Full Bench said (at 99): An organisation which is registered under the NSW Act is vested with the statutory right to appear as a party principal representing the interests of its members in proceedings under the NSW Act. It must of course demonstrate in a particular case that the organisation and its members (or some) have a proper interest in the proceedings. Such an interest is self evident in a case where the proceedings concern an award which is or would be binding upon members of the organisation. In other cases the right of an organisation to appear in proceedings depends upon it being able to demonstrate a sufficient interest in the proceedings and their outcome. Where the interest is not direct but indirect it may nevertheless be such as to warrant the grant of leave to an organisation to intervene and appear in proceedings. 7. An organisation has an interest sufficient to require it to be heard in proceedings concerning an award, instrument or legislation binding upon its members and even an indirect interest may be sufficient to warrant a grant of leave to intervene to an organisation. The approach of the Commissioner of Police historically has been not to object to the Association being heard with respect to issues concerning the interpretation or application of legislation applying to police officers: see, for example, Hosemans v Commissioner of Police (2004) 138 IR 159 at [23]-[24]. Interests of the Police Association Victimisation Issue 8. The interests of the Association in relation to the victimisation issue are clear. The Commissioner submits that the victimisation provisions of the IR Act (ss 210-213) are impliedly repealed by the Police Act and have no application to police officers generally or particularly with respect to appointment or termination. That submission obviously directly affects the Association itself and its members. 9. The victimisation provisions fall within Part 1 of Chapter 5 of the IR Act dealing with industrial organisations and contain provisions aimed at protecting freedom of association. The Association has standing, in its own right, to bring an application to the Commission under s 213(1) to enforce the provisions of Part 1 of Chapter 5 of the IR Act. If the submissions of the Commissioner were correct, the Association's rights to make application to the Commission with respect to a contravention affecting its members would be curtailed. 10. Furthermore, if the Commissioner is correct, the Association, its officers and members would be deprived of the protection of the freedom of association provisions. The Commissioner submits that he is lawfully entitled to victimise a police officer on grounds (among other things) that the officer is a member or official of the Association (s 210(1)(a)), claims a benefit under industrial relations legislation or an industrial instrument (s 210(1)(e)), informs the Association of an alleged breach by the Commissioner of industrial relations legislation or an industrial instrument (s 210(1)(f)) or participates in proceedings relating to an industrial matter (s 210(1)(g)) including proceedings brought by the Association before the Commission. 11. The functions and effectiveness of the Association, and the interests of its members, will be undermined if its members are able to be victimised without legal recourse. Police officers may be less willing to join or become officials of the Association if open to victimisation, members may be less likely to claim benefits under industrial instruments, to inform the Association of alleged breaches by the Commissioner or participate in proceedings instigated by the Association. The interests of the Association, in its own right, to be heard to ensure the interests of the Association and its members generally are properly appreciated and protected is apparent. 12. The issues are also likely to impact on other proceedings. The Commissioner submits that the remedies available to police officers pertaining to their appointment, including termination, are exclusively determined by the Police Act and exclude the IR Act. If that is correct, the rights of the Association to seek remedies, including reinstatement or reemployment or restraining dismissal, in dispute proceedings under ss 136 and 137 of the IR Act would be removed generally and with respect to medical retirement in particular. Mr Howell explains this would have potential impact on existing proceedings brought by the Association: Police Association of NSW v Commissioner of Police [2019] NSWIRComm [2020] NSWIRComm 1018. ………………………….. Contribution of the Association 17. The Association is also able to provide context and background to the legal issues raised in the proceedings in a manner which is unlikely to be possible for an individual litigant, particularly a litigant such as Mr Basan who is unrepresented. The Association has represented police officers for many decades and is able to assist the Commission in providing background of the industrial regulation of police officers and the historical interaction between industrial legislation and police legislation. The Association is also able to identify, through its involvement in other proceedings, that the approach the Commissioner now adopts is inconsistent with submissions advanced in other proceedings both present and past. Conclusion 18. The Commission should grant leave for the Association to intervene in the proceedings before the Full Bench and vary the directions in the manner sought in the Association's notice of motion. The respondent 1. The respondent made the following submissions (footnotes omitted): 1. These submissions relate to the Notice of Motion filed by the Police Association of NSW (PANSW) on 17 April 2020, in which they seek leave to intervene in these proceedings (PANSW Motion). 2. The Respondent neither consents to, nor opposes, the application made by the PANSW. It is a matter for the PANSW to establish, and the Commission to be satisfied, that there is a proper basis upon which they should be granted leave to intervene in the proceedings, and if so, the scope of that leave. 3. There are matters raised in the PANSW Motion, supporting affidavit and outline of submissions filed on behalf of the PANSW on 1 May 2020 (PAS) to which the Respondent wishes to reply, to ensure clarity and with a view to assisting the Commission in determining the application. Principles regarding leave to intervene 4. The Respondent agrees with the PANSW that the principles and authorities articulated at PAS [4]-[7] are the relevant principles and authorities that govern the Commission's exercise of discretion to grant leave to intervene in proceedings. 5. Several key principles emerge from the authorities: (a) the role of an intervener is limited, and is subject to the exercise of the Commission's discretion as to the extent of that role, but does not allow the Commission to afford the intervener the rights or standing of a party to the proceedings; (b) the Commission's discretion to grant, or refuse to grant, leave to intervene is broad; and (c) where there is already a proper contradictor in the proceedings, this is a factor that counts against leave being granted, particularly where the duality of submissions will lead to duplication in argument. 6. The above principles are consistent with the principles the Commission articulated in Re Operational Ambulance Officers (State) Award at [81]. 7. While the Commission's discretion is broad, the onus is on the PANSW to establish a "sufficient interest in the proceedings in the sense that it will be materially affected or bound by the outcome, or such other sufficient interest to warrant its appearing in, and being heard in, the proceedings". 8. The PANSW may bring victimisation proceedings under s. 213 of the Industrial Relations Act 1996 (IR Act) in their own right. The Applicant has brought victimisation proceedings in his own right. Although available as an option, the PANSW has not elected to commence the proceedings on the Applicant's behalf. 9. To obtain standing, the PANSW must show some interest in the proceeding that is divergent from, and in conflict with, the interests of the Applicant that warrants the PANSW being granted separate standing. The PANSW and the Applicant have a common interest and desire to have the Respondent's Notice of Motion dismissed, which may lead to duplication of submissions. I0. As they are not a party to these proceedings, it follows that the PANSW will not be "bound by the outcome" in these proceedings. The only member of the PANSW that is affected is the Applicant. The PANSW must establish that it will be "materially affected" by these proceedings, or that they have some other "sufficient interest" to warrant their intervention, 11. The PANSW's case is that it, and its members (other than the Applicant) are indirectly affected by these proceedings. To the extent that the PANSW's interest is of the precedential kind, this has generally been held to be insufficient. The High Court indicated in Roadshow Films Pty Ltd v iiNet limited (No 1) (2011) 248 CLR 47 (at [2]) that a non-party may be granted leave to intervene to protect its legal interests which would be directly affected by, and where it would be bound by, a decision. However, leave to intervene will not ordinarily be granted if a non-party's interests are merely the potential that a decision may establish a precedent which may adversely impact upon future or prospective litigation. As the Court stated, "[i]ntervention will not ordinarily be supported by an indirect or contingent affection of legal interests following from the extra-curial operation of the principles enunciated in the decision of the Court or their effect upon future litigation". Accordingly, to the extent that the Commission concludes that the PANSW's interest in these proceedings is of the precedential kind, the High Court suggests such an interest is not sufficient to warrant leave to intervene. 12. In relation to PAS [12], it is not clear that these proceedings will have any bearing on the industrial dispute to which Mr Howell refers in his affidavit (at [14]). Those proceedings concern an industrial dispute notified by the PANSW, in which it seeks orders preventing the Respondent from medically retiring two police officers and the making of an award. Conclusion 13. The Respondent neither consents to, nor opposes, the PANSW being granted leave to intervene in these proceedings. Police Association in reply 1. In reply, the Police Association put the following: 1. These are submissions on behalf of the NSW Police Association in reply to the submissions of the Commissioner of Police dated 8 May 2020 ("the Commissioner's Submissions") in relation to the Association's application for leave to intervene in the proceedings before the Full Bench. 2. The Association notes that the Commissioner of Police neither consents to, nor opposes, the Association intervening in the proceedings. It is also noted that the Commissioner does not appear to dispute what is said in the Association's submissions as to the consequences of his submissions for the Association and its members both in relation to the application of the victimisation provisions of the IR Act as well as the access of the Association to industrial dispute proceedings and the jurisdiction of the Commission to make awards applying to police officers. 3. It is nonetheless appropriate to respond briefly to some matters raised in the Commissioner's submissions. Principles to be Applied 4. The Commissioner indicates that he accepts the summary of the principles in relation to intervention (Commissioner's Submissions, para 4). However, the Commissioner's submissions suggest the existence of additional tests or barriers to a grant of leave to intervene which find no support in the authorities or are misconceived. 5. Firstly, it is suggested that the Association must "show some interest in the proceeding that is divergent from, and in conflict with, the interests of the Applicant that warrants the PANSW being granted separate standing" (Commissioner's Submissions, para 9). No authority is cited for the proposition and the imposition of such a test would be inconsistent with the existence of the broad discretion of the Commission to permit intervention: Re Operational Ambulance Officers (State) Award (2011) 207 IR 272 at [48]; Ambulance Service of NSW v HSU East [2013] NSWIRComm 48 at [23]. 6. The possibility of duplication of argument is ordinarily dealt with by limiting the scope of intervention rather than refusal of leave to intervene if otherwise warranted: see Re Operational Ambulance Officers (State) Award (2011) 207 IR 272 at [81]. The practical circumstances in this matter are that Mr Basan is presently not legally represented and the Commission will be assisted by the involvement of the Association. In any event, the Association is able to assist the Commission in relation to the background of the industrial regulation of police officers and the historical interaction between industrial legislation and police legislation in a manner that is unlikely to be available to an individual litigant even with legal representation. 7. Secondly, the Commissioner suggests that the Association "elected not to commence proceedings on the Applicant's behalf" (Commissioner's Submissions, para 8). That is misleading. An application under s 213 of the IR Act may be made either by an industrial organisation or any person affected by a contravention. An individual employee affected by a contravention has a right to bring proceedings. The Association cannot control or prevent an individual doing so (with or without the Association's knowledge). The Association did not make any "election" not to bring the proceedings. 8. Thirdly, the Commissioner refers to the judgment of the High Court in Roadshow Films Pty Ltd v iiNet Limited (No 1) (2011) 248 CLR 37 in support of the proposition that "leave to intervene will not ordinarily be granted if a non-party's interests are merely the potential that a decision may establish a precedent which may adversely impact upon future or prospective litigation" (Commissioner's Submissions, para 11). The statement does not describe the approach of the High Court accurately. 9. The Court noted (at [2]) that a non-party's legal interests may be affected substantially by the outcome of proceedings so as to satisfy a precondition for leave to intervene even though not bound by the outcome in a particular case, for example, as a result of other pending litigation. The Court referred to the judgment of Brennan CJ in Levy v Victoria (1997) 189 CLR 579 where his Honour said (at 601-602): But the legal interests of a person may be affected in more indirect ways than by being bound by a decision. They may be affected by operation of precedent - especially a precedent of this Court - or by the doctrine of stare decisis… As this Court's appellate jurisdiction extends to appeals, whether directly or indirectly, from all Australian courts, a decision by this Court in any case determines the law to be applied by those courts in cases that are not distinguishable. A declaration of a legal principle or rule by this Court will govern proceedings that are pending or threatened in any other Australian court to which an applicant to intervene is or may become a party. Even more indirectly, such a declaration may affect the interests of an applicant either by its extracurial operation or in future litigation. Ordinarily, such an indirect and contingent affection of legal interests would not support an application for leave to intervene. But where a substantial affection of a person's legal interests is demonstrable (as in the case of a party to pending litigation) or likely, a precondition for the grant of leave to intervene is satisfied. 10. In the present matter, the Association falls within a category where there is "a substantial affection of a person's legal interests is demonstrable ... or likely" so as to satisfy a precondition to the grant of leave to intervene. As explained in the Association's earlier submissions, the victimisation provisions are designed to protect the members and operations of industrial organisations. The Association is the only organisation whose protection would be removed by the Commissioner's submissions. The Association is recognised by the Act as having a special status of being entitled to make application to enforce the victimisation provisions of the IR Act and a substantial affection of its legal interests is demonstrable or at least likely. That approach also recognises the special status of industrial organisations under the IR Act. ……………………………. 1. The Police Association and the respondent have agreed that I should determine the intervention application 'on the papers'. Determination 1. For the reasons set out in the written submissions of the Police Association, with which I agree, I have determined that the association has established a sufficient interest in the proceedings to warrant the grant of leave to intervene. 2. In Re Laundry Employees (State) Award (No 2) [1993] 49 IR 91, a Full Bench of the Commission (Hill and Cullen JJ and Redman C) considered the capacity of an unregistered organisation to appear in award proceedings as agent for a number of identified employers covered by the award under consideration. As is set out in the submissions of the Police Association, the Full Bench stated (at 99-100): An organisation which is registered under the NSW Act is vested with the statutory right to appear as a party principal representing the interests of its members in proceedings under the NSW Act. It must of course demonstrate in a particular case that the organisation and its members (or some) have a proper interest in the proceedings. Such an interest is self evident in a case where the proceedings concern an award which is or would be binding upon members of the organisation. In other cases the right of an organisation to appear in proceedings depends upon it being able to demonstrate a sufficient interest in the proceedings and their outcome. Where the interest is not direct but indirect it may nevertheless be such as to warrant the grant of leave to an organisation to intervene and appear in proceedings. A similar position obtains in relation to persons other than organisations. In order to be a primary party to or be granted leave to intervene in the proceedings the person must establish, to the Commission's satisfaction, that it has a sufficient interest in the proceedings, in the sense that it will be materially affected or bound by the outcome or such other sufficient interest to warrant its appearing in and being heard in the proceedings. 1. In the present matter, the intervention application is strengthened by the fact that the Police Association is a registered industrial organisation of employees. It bears the responsibility to protect and promote the industrial interests of its members, serving officers of the NSW Police Force. If the respondent's 'implied repeal/exclusive code' submission is accepted by the Commission, it will inevitably follow that the Police Association's capacity to pursue victimisation applications on behalf of its members will be severely hampered. This establishes a sufficient interest in the proceedings on the part of the Police Association to warrant the grant of leave to intervene. 2. Further, given that the applicant is not legally represented, it is unlikely that there will be any significant duplication of submissions during the hearing of the respondent's strike out application. 3. The application by the Police Association for leave to intervene in the proceedings is granted. The intervention will, however, be limited to putting submissions to the Commission on the 'implied repeal/exclusive code' issue. John Murphy Commissioner (on delegation from the Full Bench) ********** 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: 18 May 2020