Commissioner of Police v Bunait [2010] NSWIRComm 16

Commissioner of Police v Bunait [2010] NSWIRComm 16

The Deputy President erred by treating the matter as having moved into the arbitration phase merely because conciliation had failed and procedural directions for filing and serving evidence had been made. For s 173(1) of the Industrial Relations Act 1996, the objection and request must be made before the Commission commences to exercise arbitration powers in relation to the relevant matter. Procedural directions for evidence did not constitute the exercise of arbitration powers in relation to the respondent's s 174 Police Act 1990 application, and no relevant prejudice was occasioned to the respondent.

Jurisdiction
Australia
Judgment Date
12 February 2010
Procedural Posture
Application for Leave to Appeal and Appeal / Full Bench Decision on Leave to Appeal and Appeal From Decision of Deputy President Sams
Outcome
Leave to appeal granted; appeal upheld.
Legal Topics
['section 173 Objection and Request' 'conciliation and Arbitration Powers' 'reviewable Action Under Police Act 1990' 'leave to Appeal']
['industrial Relations' 'police Disciplinary Review' 'administrative Law'] ['section 173 Objection and Request' 'conciliation and Arbitration Powers' 'reviewable Action Under Police Act 1990' 'leave to Appeal']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal / Full Bench Decision on Leave to Appeal and Appeal From Decision of Deputy President Sams

Legal Issues

  1. 1 ["Whether the Deputy President erred in not acceding to the Commissioner of Police's objection and request under s 173(1) of the Industrial Relations Act 1996 that a different member exercise arbitration powers." 'Whether an objection and request under s 173(1) must be raised before the Commission commences to exercise arbitration powers in relation to the industrial dispute or other matter.' 'Whether making directions for filing and serving evidence after failed conciliation amounted to commencement of arbitration powers.']

Ratio Decidendi

The Deputy President erred by treating the matter as having moved into the arbitration phase merely because conciliation had failed and procedural directions for filing and serving evidence had been made. For s 173(1) of the Industrial Relations Act 1996, the objection and request must be made before the Commission commences to exercise arbitration powers in relation to the relevant matter. Procedural directions for evidence did not constitute the exercise of arbitration powers in relation to the respondent's s 174 Police Act 1990 application, and no relevant prejudice was occasioned to the respondent.

Court Disposition

Leave to appeal granted; appeal upheld.

Orders

  • ['Leave to appeal is granted.' 'The appeal is upheld.' 'The decision and directions made by Sams DP in Matter No IRC 970 of 2009 are quashed.' 'The file in Matter No IRC 970 of 2009 is to be returned to the President for allocation to a different member of the Commission.']