Fair Work Act 2009
s.739—Dispute resolution

The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria
v
Victoria Police/Chief Commissioner of Police
(C2022/973)

Alleged dispute about any matters arising under the enterprise agreement – jurisdictional objection – objection upheld – application dismissed

[1] The Police Federation of Australia (Victoria Police Branch) (Police Association) has, on behalf of a Senior Constable, raised a dispute raised under s.739 of the Fair Work Act 2009 (Cth) (the FW Act) regarding the operation of clauses 119.13 and 119.17(b) of the Victoria Police (Police Officers, Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2019 (the Agreement).

[2] Victoria Police/Chief Commissioner of Police (Victoria Police) is intending to “ill health retire” the Senior Constable. The Police Association contends that clauses 119.13 and 119.17 of the Agreement, which concern discharge of medical grounds, have not been satisfied.

[3] Conferences before me did not resolve the dispute. At a subsequent mention hearing, Victoria Police raised a jurisdictional objection regarding s.5(2)(b) of the Victorian Fair Work (Commonwealth Powers) Act 2009 (Vic) (Referral Act). The gravamen of that objection was that cl. 119 was relevantly unenforceable and beyond the power of the FW Act, as the subject matter of it was excluded from the reference of power under the Referral Act.

[4] The parties agreed that it was appropriate to deal with the jurisdictional objection first. The jurisdictional question asked was:

“Is the Commission precluded from dealing with a dispute about clauses 119.13 and/or 119.17 of the enterprise agreement by operation of s5(2)(b) of the Fair Work (Commonwealth Powers) Act 2009 (Vic)?”

[5] A hearing was held before me on 25 May 2022. Final written submissions were received on 17 June 2022.

The FW Act

[6] In answering the jurisdictional question, it is necessary to have regard to the FW Act, the Agreement, the Referral Act and its predecessor, as well as the right of control in relation to those matters under Victorian law at the relevant times.

[7] Part 2-4 of the FW Act allows enterprise agreements to be made and approved between certain employers and employees. In Part 2-4, employee means a “national system employee”, and employer means a “national system employer”: FW Act, s.170. Those terms are defined in sections 13 and 14 of the FW Act. In the case of national system employers, they refer to various entities who “employ” the individual employee.

[8] The employing entities reflect various Commonwealth constitutional heads of power, most notably the corporations power and the territories power (among others). Section 14, which sets out the types of employers who are national system employers, does not include the public service 1 of State governments or their law enforcement authorities.

[9] As recently stated by the High Court, “police officers at common law are not employees but are "independent office holders exercising original authority under statute and the common law".” 2

[10] For the FW Act to apply to Victorian police officers, the FW Act would need to extend its application to the Victoria Police and also to treat sworn officers as employees. The FW Act does both. Division 2A of Part 1-3 of the FW Act applies to a “referring State” as a Parliament of a State that had, before 1 July 2009, referred certain powers to the Commonwealth. The Referral Act was assented to on 17 June 2009.

[11] Section 30C of the FW Act extends the definition of national system employee to include “law enforcement officers” of a State to whom s.30E(1) applies. A “law enforcement officer” includes a member of the police force.

[12] Section 30D of the FW Act then extends definition of national system employer to apply to a holder of an office to whom subsection 30E(2) applies.

[13] A truncated summary of s.30E(1)&(2) of the FW Act is that they enable a State to make a reference of power providing for law enforcement officers to be treated as employees and for holders of offices, such as the Chief Commissioner of Police, to be treated as an employer.

[14] The constitutional mechanism for the grant of State power just described relies upon, and is confined by, the terms of the relevant referral of power: FW Act, s.30H.

[15] In Parks Victoria v Australian Workers’ Union (2013) 234 IR 242 (Parks Victoria) at [294], a Full Bench of this Commission stated, in the context of the Commission’s power to make a workplace determination: 3

“The Commission does not have jurisdiction to include in the workplace determination any terms (agreed or otherwise) which pertain to an excluded subject matter. To the extent that an agreed term deals with an excluded subject matter (within the meaning of s 5 of the Referral Act), s 267(2) has no valid operation. This is because the Referral Act [2009] is the sole source of the Commission’s power in these proceedings and, as Fullagher J said in Australian Communist Party v Commonwealth:

… a stream cannot rise higher than its source.”

[16] Those observations apply with equal force to the matter before me.

The Agreement

[17] The Agreement was approved on 25 March 2020 and has a nominal expiry date of 30 November 2023. The Police Association is an organisation covered by the Agreement.

[18] Clause 2 was expressed to make the Agreement binding on (relevantly):

“(a) The Chief Commissioner of Victoria Police (Chief Commissioner) who is, for the purpose of the Fair Work Act 2009 (FW Act), the employer of the classes of employees referred to in sub-paragraph (b);

(b) The following persons:

(i) Police Officers appointed under Part 3, Division 5 of the Victoria Police Act 2013 (VP Act); …”

[19] The Senior Constable, for whom the Police Association has brought this dispute, is a “Police Officer” for the purpose of the Agreement. An “employee” under the Agreement is defined to include Police Officers.

[20] Perhaps presciently, the Agreement recorded a statement addressing the operation of the Referral Act. Clauses 3.1 and 3.2 stated:

“3.1 This Agreement is intended to have effect as an Enterprise Agreement under the FW Act only to the extent that the matters dealt within it are covered by the reference to the Parliament of the Commonwealth under the Fair Work (Commonwealth Powers) Act 2009 (FWCP Act) as amended or replaced from time to time.

3.2 Where a provision of this Agreement deals with a matter that is not covered by the reference under the FWCP Act:

(a) that provision will be deemed not to have formed part of this Agreement as intended to be approved under the FW Act; but

(b) that provision will in every other respect, to the extent permitted by law, stand as a legally binding agreement between the parties hereto; and

(c) apart from that provision, this Agreement will have full force and effect under, and to the extent permitted by, the FW Act.”

[21] Clause 10 of the Agreement contained a dispute resolution clause. While clause 10.2 excludes from the operation of that clause matters “where a statutory right of review exists”, Victoria Police does not contend want of jurisdiction in the Commission by reason of that provision.

[22] Clause 23 of the Agreement addresses the placement of “surplus employees”, which relevantly includes an employee “who has been found unfit for their position in accordance with clause 119.”

[23] Clause 119 is titled “Fitness for Work”. It comprises clauses 119.1 – 119.17. Clauses 119.1 – 119.7 address work and non-work related incapacities and when a person might be directed to attend for examination by the Police Medical Officer to assess fitness for work.

[24] Clauses 119.8 – 119.10 require the Police Medical Officer’s assessment to include a recommendation about an officer’s ability to return to full duties, modified duties or whether any duties at all might be performed.

[25] Clause 119.11 requires Victoria Police to attempt to identify “as far as practicable” alternative positions which can accommodate any medical limitations or restrictions found.

[26] Clause 119.12 provides that an employee might be required to attend further assessments if notified of such as the beginning of their employment.

[27] Clauses 119.13 to 19.17 are as follows:

“119.13 Where the opinions of the Police Medical Officer and the employee's medical practitioner conflict as to the employee's capacity for duty, the Police Medical Officer must review their opinion. In the event that the Police Medical Officer maintains their opinion, the employee may elect to be referred to a suitable registered medical practitioner from the agreed independent list. Referral to a particular medical practitioner within the specialty will be based upon the cab rank principle. The Police Medical Officer and the employee's medical practitioner may provide medical reports to the registered medical practitioner. The medical practitioner will provide the final medical advice in accordance with the criteria contained in sub-clause 119.8.

119.14 A 'suitable registered medical practitioner' must be an independent specialist in the field of expertise relevant to the employee's medical limitations or restrictions.

119.15 Where an employee refuses to attend a medical examination by either the Police Medical Officer or a nominated suitable registered medical practitioner or, following an assessment, refuses to return to duty or transfer to another position, then:

(a) in the case of a work related illness or injury, the employee's accident make up pay will cease and the employee will not be entitled to personal/carers leave; or

(b) in the case of a non-work related illness or injury the employee's personal/carers leave will cease; and

(c) the employee will be considered to have withdrawn their services.

119.16 Where it is identified that the employee cannot return to their substantive position the employer will attempt to identify a suitable position in accordance with clause 23.

119.17 On the provision of 21 days' notice the employee may be discharged on medical grounds, subject to Victorian workers' compensation legislation where any one of the following paragraphs (a)-(c) apply:

(a) an employee is found to be unfit for all duties in Victoria Police and is likely to continue indefinitely to have no work capacity;

(b) in the case of a work related injury:

(i) the employer is unable to provide duties that comply with the stated medical limitations or restrictions; and

(ii) the medical limitations or restrictions and the inability to provide duties are likely to continue indefinitely; and

(iii) the employee has exhausted any entitlement to accident make-up pay under this Agreement, unless the employee has made an application under clause 120.

(c) in the case of a non-work related injury or illness:

(i) the employer is unable to provide duties that comply with the stated medical limitations or restrictions; and

(ii) the medical limitations or restrictions and the inability to provide duties are likely to continue indefinitely; and

(iii) the employee is not entitled to further personal leave pursuant to clause 109, unless the employee has made an application under clause 121.”

The factual context of the dispute

[28] Noting that cll.119.13 and 119.17(b) are the critical clauses in dispute, it is useful at this stage to briefly record the factual dispute in which these two provisions came into issue.

[29] The material before me disclosed medical examinations by the Police Medical Officer beginning on 5 September 2019. Four subsequent examinations ensued by the Police Medical Officer, most recently on 6 November 2020.

[30] On 7 December 2020, the Police Medical Officer gave advice that the Senior Constable was assessed as having permanent limitations on aspects of her capacity. Those limitations included “operational” duty.

[31] On 11 December 2020, Victoria Police wrote to the Senior Constable. Among other matters, the letter noted she had been assessed as having capacity to work in a non-operational capacity. The letter noted that the attempts to provide the Senior Constable with return to work opportunities had been occurring since May 2020 (although the details were not set out they are presumably known to the parties) but that had not yet eventuated. The Senior Constable was then directed to return to work on 29 January 2021, to perform administrative duties and to complete online training. The location for the return to work specified was the Seymour police station. A copy of the report was provided to the officer.

[32] In a separate letter on 11 December 2020, Victoria Police advised the Senior Constable that it had assessed, by reference to cl.119.10 and 119.11 of the Agreement, the Senior Constable’s limitations and that it was unable to accommodate her limitations with reasonable adjustments in her current (gazetted) position. The letter also stated that there was presently no available position in her region.

[33] On 6 January 2021, the Senior Constable submitted a letter from a treating practitioner providing an opinion that, among other matters, a return to work at a police station was not appropriate but that return to work at a non-police station corporate building would better serve.

[34] Following this advice, Victoria Police sought a review of the recent Police Medical Officer advice. There was correspondence with the Police Association to that effect. The initial return to work date was deferred.

[35] The above correspondence identifies two separate processes. One process is the return to work component (in effect, the workers compensation and rehabilitation process). The other concerns the Senior Constable’s substantive position and attempts to find another position available within Victoria Police (including by potential deployment). There is some dispute between the parties as to the extent that these processes do (or should) interact and while it is not necessary for me to resolve them, the two processes explain aspects of the correspondence between the parties.

[36] On 29 March 2021, Victoria Police wrote to the Senior Constable and indicated that because, in Victoria Police’s view, her medical conditions could not be accommodated in the Eastern Region she would be referred to the redeployment process, overseen by the Workplace Relations Division (WRD) within Victoria Police.

[37] In May 2021, the Senior Constable commenced a return to work in the Digital Services and Security Command based at the Victoria Police Centre, initially as two shifts of 4 hours each.

[38] On 16 June 2021, the Senior Constable received an email from WRD stating that WRD would be conducting the redeployment process concurrently with the return to work process.

[39] On 14 July 2021, the Police Association wrote to WRD indicating the initiation of the redeployment process was premature. Various exchanges about this then took place.

[40] On 17 November 2021, WRD sent an email to the Senior Constable stating that participation in the redeployment process for the three (3) months had concluded and next steps were to be discussed.

[41] On 10 December 2021, Victoria Police issued correspondence to the Senior Constable confirming the redeployment process had concluded and a referral to ill health retire on medical grounds would be submitted to the Director of WRD for authorisation.

[42] On 29 December 2021, the WRD issued a notice to the Senior Constable of intention that she would be “ill health retired”.

[43] On 10 January 2022, the Senior Constable’s treating practitioner provided a letter stating his opinion that the Senior Constable was able to increase her weekly work hours and that he would review her capacity to return to operational duties following completion of further therapy identified in his letter.

[44] On 21 February 2022, the same treating practitioner provided another opinion stating that the Senior Constable was tolerating well the therapy foreshadowed in his previous letter, and that she would be able to increase her hours by four to six hours every month until she was working full time. In regard to options for returning to “operational” duties, he did not recommend this, but said he would review her capacities in coming months after her completion of the said therapy and in light of her return-to-work progress over 2022.

[45] The dispute raised by the Police Association has three elements. They are:

•  that Victoria Police commenced the redeployment process prematurely, in that the full limits of the Senior Constable’s capacity had not been determined.

•  that the conditions of cl.119.17, where ill-health retirement may occur, were not met.

•  that the letters from a treating practitioner for the Senior Constable in on 10 January and 21 February 2022 create a conflict of medical opinion (with the Police Medical Officer) for the purpose of cl.119.13.

[46] Victoria Police contends that the Commission does not have jurisdiction to determine the subject matter of the dispute, as it deals with the physical or mental fitness and termination of employment of a law enforcement officer, being matters beyond the referral of power granted by Referral Act.

The Referral Act

[47] Section 1 of the Referral Act identifies the purposes of that act, which includes referring various matters relating to workplace relations to the Commonwealth Parliament and to repeal the Commonwealth Powers (Industrial Relations) Act 1996 (Vic) (CPIR Act).

[48] Section 3(2) of the Referral Act provides:

“(2) For the purpose of a reference of matters under this Act—

(a) the Chief Commissioner of Police under the Victoria Police Act 2013 is taken to be the employer of any law enforcement officer; and

(b) any law enforcement officer is taken to be an employee in the public sector.”

[49] A “law enforcement officer” is defined in s.3 to mean “a police officer, police reservist, police recruit, protective services officer or special constable within the meaning of the Victoria Police Act 2013”. At the time the Referral Act was passed, it evidently did not refer to the Victoria Police Act 2013 (Vic) (Victoria Police Act) but instead referred to the Police Regulation Act 1958 (Vic) (Police Regulation Act). I will return to the Police Regulation Act below but, for present purposes, this change is immaterial to the definition of “law enforcement officer” or the initial referrals of power.

[50] Section 3 of the Referral Act defines “referred subject matters” broadly. Relevantly to how the case before me was advanced, it includes “termination of employment” and “protection from discrimination relating to employment” but excludes any “excluded subject matter”.

[51] The definition of “excluded subject matter” itself incorporated other defined terms (ultimately including, by way of example, matters such as workers compensation or long service leave).

[52] Section 3A of the Referral Act identifies various “fundamental principles” under that act, which includes “collective bargaining at the enterprise level with no provision for individual statutory agreements” and “protection from unfair dismissal”. Section 3A was introduced by a later amendment.

[53] Section 4 of the Referral Act then refers various matters, including the “referred subject matters”, to the Parliament of the Commonwealth. Relevantly, the section provides:

“4 Reference of matters

(1) Subject to sections 5 and 5A, the following matters are referred to the Parliament of the Commonwealth—

…

(b) the referred subject matters, …”

[54] As noted above, “the referred subject matters” relevantly include “termination of employment” and “protection from discrimination relating to employment”.

[55] Section 5 of the Referral Act then excludes from the referral in s.4 various matters. Relevantly, the section provides as follows (emphasis added):

“5 Matters excluded from a reference

(1) A matter referred by section 4(1) does not include—

(a) matters pertaining to the number, identity or appointment (other than terms and conditions of appointment) of employees in the public sector who are not law enforcement officers, except to the extent that those matters are referred to the Parliament of the Commonwealth by section 5A;

…

(k) …

(2) In addition to the matters set out in subsection (1), a matter referred by section 4(1) does not include—

(a) matters pertaining to the number, identity or appointment (including terms and conditions of appointment, to the extent provided for in paragraph (b)) of law enforcement officers;

(b) matters pertaining to probation, promotion, transfer from place to place or position to position, physical or mental fitness, uniform, equipment, discipline or termination of employment of law enforcement officers except—

(i) matters pertaining to the payment of allowances and reimbursement of expenses and pertaining to notice of termination of employment and payment in lieu of notice of termination of employment; and

(ii) to the extent that Divisions 1 and 2 of Part 6-4 of the Commonwealth Fair Work Act, as originally enacted, deal with the matters.

(3) …”

[56] For completeness, the exclusions in s.5(1)(b) – (k) variously list, as matters excluded from the references in s.4, matters pertaining to certain persons or groups such as Ministers, members of Parliament, other persons holding senior public offices, ministerial advisers, redundancies or transfers for certain public sector bodies and certain matters related to essential services (as defined).

[57] Other than the reference to the referral of matters in s.5A in s.5(1), the above provisions extracted from s.5 of the Referral Act have not been amended. Section 5A is not relevant to this dispute.

The CPIR Act

[58] As the terms of the Referral Act indicate, the Referral Act was preceded by an earlier referral of industrial relations powers by the State of Victoria pursuant to the CPIR Act.

[59] The CPIR Act was assented to on 12 December 1996. Under the CPIR Act, an “employee” was defined to include a “law enforcement officer”. The CPIR Act contained a structure, later followed by the Referral Act, of a reference of certain powers in s.4 and matters excluded from the reference in s.5.

[60] The referral in s.4 of the CPIR Act was broad in its terms. It included, without any significant qualification, the “matter of conciliation and arbitration for the prevention and settlement of industrial disputes” (s.4(2)), the “matter of agreements about matters pertaining to the relationship between an employer … and an employee” (s.4(3)), and the “matter of minimum terms and conditions of employment for employees in the State” (s.4(4)).

[61] By s.4(5), there was a broad referral of the “matter of termination, or proposed termination, of the employment of an employee” but this was qualified for employees “other than a law enforcement officer”. Section 4(6) referred the “matter of freedom of association” and s.4(7) the “matter of the setting and adjusting of minimum wages and employees” of a kind specified.

[62] Section 5 of the CPIR Act contained important exclusions for law enforcement officers. It was as follows (emphasis added):

“5. Matters excluded from a reference

(1) A matter referred by a sub-section of section 4 does not include—

(a) matters pertaining to the number, identity, appointment (other than terms and conditions of appointment) or discipline (other than matters pertaining to the termination of employment) of employees, other than law enforcement officers, in the public sector;

(b) matters pertaining to the number, identity, appointment (other than matters pertaining to terms and conditions of appointment not referred to in this paragraph), probation, promotion, transfer from place to place or position to position, physical or mental fitness, uniform, equipment, discipline or termination of employment of law enforcement officers;”

[63] There were other matters excluded by s.5. The exclusions encompassed the number and identity of employees in the public sector dismissed for redundancies, various subject matters (such as long service leave, workers’ compensation and equal opportunity), matters concerning ministers and other senior public servants and advisors, and the like.

[64] As far as the referral of the powers for law enforcement officers was concerned, the exclusions from those referrals contained in s.5(1)(a) – (b) above remained unchanged up until the repeal of the CPIR Act by the Referral Act.

The parties’ submissions

[65] Victoria Police’s submissions set out in some detail the operation of the Referral Act and the provisions of the FW Act largely set out above. It also relied upon a decision of the Full Court of the Federal Court of Australia in Dempster v Comrie (2000) 96 FCR 570 (Dempster v Comrie), where sections 4 and 5 of the CPIR Act were considered.

[66] In relation to s.5(2) of the Referral Act, the initial submissions of Victoria Police were simply stated:

“The question for the Commission then is whether the matters arising in the dispute pertain to any of the s5(2)(b) matters. Having regard to the matters raised in the PFA’s F10, and the documents annexed thereto, the matters raised appear to pertain to the physical or mental fitness and the termination of employment of the relevant law enforcement officer, [the Senior Constable].”

[67] The Police Association submitted that, when interpreting the Referral Act, a construction that would promote the purpose of the statute is to be preferred to one that would not. The Police Association also stated that consideration may be given to extrinsic material, such as Hansard and the like: Interpretation of Legislation Act 1984 (Vic). I accept those submissions.

[68] I was referred to the following statements by the Minister in his second reading speech for the Fair Work (Commonwealth Powers) Bill (Vic) (emphasis added): 4

“While the new referral will result in almost all Victoria workers having the protection of the federal laws, it is important to note that some exemptions are made. These exemptions are similar to those that have operated since the Kennett government made the first referral or industrial relations powers in 1996. Members of Parliament, the judiciary, members of administrative tribunals, ministerial officers and senior executives in the public sector are all excluded. Persons holding office as parliamentary officers and certain other office-holders are also excluded.

Victoria will not refer certain matters in relating to public sector employees. In particular, the state will not refer matters relating to the number, identity and appointment (but not terms and conditions of appointment) and redundancy of public sector employees. These matters were excluded from Victoria’s previous referral. They relate to the matters that the High Court in the Re AEU decision held to be essential to the functioning of the states. For this reason, the High Court decided that such matters could not be subject to commonwealth legislation

Victoria also will not refer matters in relation to transfer of public sector employees and directions given to public sector employees under state laws dealing with essential services and situations of emergency services. These matters were excluded from Victoria’s previous referral. This will maintain the integrity of state laws dealing with these matters.

Victoria will not refer certain additional; matters in relation to law enforcement officers. Again, these matters were excluded from Victoria’s previous referral. They are appropriate to maintaining the integrity of state laws governing law enforcement officers.”

[69] The Police Association relied upon the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter). Section 2 of the Charter provides that, “So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.”

[70] The Police Associate noted that s.8(2) of the Charter provides that “Every person has the right to enjoy his or her human rights without discrimination” and that “discrimination” has the same meaning as it does under Equal Opportunity Act 2010 (Vic) (EO Act).

[71] For cl.119.13 of the Agreement, the Police Association states:

“A review of medical opinion pursuant to 119.13 of itself is not determinative of an employee’s physical or mental fitness and can’t be said to impinge on the exercise of the Chief Commissioners discretion under s 67 of the Victoria Police Act 2013 (Vic). The decision-making power with regard to discharge on medical grounds remains with the Chief Commissioner. Clause 119.13 is a review mechanism as to the soundness of the medical advice to be forwarded to the Chief Commissioner. It places no obligation on him to exercise his discretion one way or another. There is no power to terminate an employee on medical grounds, under clause 119.13 of the Agreement.”

[72] For cl.119.17 of the Agreement, the Police Association states (emphasis added):

“4.5 In our submission the totality of clause 119 can be read as a process of assessing ‘reasonable accommodation’ in accordance with the obligations of employers under the Equal Opportunity Act 2010 (Vic)

4.6. A contextual analysis of clause 119 requires an analysis of ideas and the industrial frameworks that informed the intention of the parties in drafting clause 119.

4.7. The PFA submits that clause 119 was drafted in a manner to replicate protections under existing anti-discrimination law at a State and Commonwealth level that provided for the making of reasonable adjustments for an employee with a disability and/or permanent medical limitations.”

[73] In developing that submission, reference was made by the Police Association to s.20 of the EO Act, which requires employers to make “reasonable adjustments” unless the person or employee could not or cannot adequately perform the genuine and reasonable requirements of the employment even after the adjustments are made.

[74] Reliance was also placed on Commonwealth discrimination law and to the relevant prohibitions against adverse action in the FW Act.

[75] In oral submissions, the Police Association advanced a submission based on s.5(2)(b)(ii) of the Referral Act concerning Part 6-4 of the FW Act. Section 5(2)(b)(ii) is, in effect, an exception to the exceptions in s.5(2)(b).

[76] Noting also that the parties had placed some, albeit limited, material before me regarding the CPIR Act, I invited subsequent submissions in relation to those matters, including in relation to the Police Commissioner’s powers regarding ill health retirement that were in place at the time of the Referral Act.

[77] As to Part 6-4 of the FW Act, the Police Association’s subsequent written submissions relied upon the following extracts of s.772:

Section 772- Employment not to be terminated on certain grounds

(1) An employer must not terminate an employee's employment for one or more of the following reasons, or for reasons including one or more of the following reasons:

*****

(f) race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin;

*****

(2) However, subsection (1) does not prevent a matter referred to in paragraph (1)(f) from being a reason for terminating a person's employment if:

(a) the reason is based on the inherent requirements of the particular position concerned; or”

[78] The Police Association submitted that the inclusion of this matter in the referral underpins its arguments that a provision requiring the State not discriminate, but rather make reasonable adjustments for a worker with an attribute covered by discrimination legislation is not beyond power.

[79] Section 772 in its terms concerns termination of employment. The Police Association submits it is absurd to conclude that a worker has a remedy once they are dismissed but an enterprise agreement that seeks that their employer comply with anti-discrimination legislation prior to dismissal is beyond power.

[80] On this issue, Victoria Police in reply emphasised that s.5(2)(b)(ii) of the Referral Act applies only “to the extent” of the matters described. Victoria Police contends that, on a proper construction, the relevant effect of s5(2)(b) is that the FW Act has no application in respect of a matter pertaining to physical or mental fitness, or termination of employment, of law enforcement officers in Victoria, subject to the potential residual right of a law enforcement officer to make a claim under Part 6-4 of the FW Act in the event his or her employment (as that term is extended) is terminated.

[81] In relation to the provisions under Victorian law for the ill-health retirement of Victorian police officers, the parties agreed that s.16B of the Police Regulation Act was the relevant provision in force at the time the Referral Act was passed. In addition to the other submissions it advances, the Police Association states that the relevant sections of that Act do not use the expression “physical and mental capacity”.

[82] Section 16B was as follows (emphasis added in relation to matters relied upon by the Police Association):

“16B Incapacitated officers

(1) The Chief Commissioner may at the request of a member of the force inquire into the fitness and capacity of the member to discharge the duties of his office.

(2) In connexion with any such inquiry the · Chief Commissioner may require the member to submit himself for examination by the Government Medical Officer (in the case of a member who is not a contributor to the State Superannuation Fund) or by a legally qualified medical practitioner appointed by the State Superannuation Board pursuant to the State Superannuation Act 1988.

(3) If the Chief Commissioner of Police is satisfied that the member is incapacitated for the performance of his duty by infirmity of mind or body he may approve of the member retiring on the ground of ill health.

(4) The provisions of this section shall not apply to any member of the force who is a contributor to the Police Pensions Fund.”

[83] Section 16B of the Police Regulation Act was located in Part 1 of that act, titled “Appointments and Retirements”. Among other matters, that Part provided for the appointment, removal, and powers of the Chief Commissioner of Police and other Commissioners (ss.4 – 6A), the establishment of a Medical Board the purpose of examining the members of the force as any regulations might provide for (s.7), the appointment, promotion and transfer of officers (s.8), appeals in relation non-selection for promotion (s.8A), and other matters concerning promotions, salaries, authorities and oaths of office (s.8AB – s.16). Section 16 permitted a right to early retirement at age 55.

[84] Section 16B as set out above was inserted, in materially identical form, into the Police Regulation Act by amendments in 1981. Some changes were made to remove references to the Police Pension Fund by legislative amendments in 1997 but, otherwise, the provision remained materially unchanged prior to the repeal of the Police Regulation Act in 2009 by the Referral Act.

[85] Part IV of the Police Regulation Act, as in force when the CPIR Act was passed, was titled “Employment, Disciplinary and Other Matters”. As the title suggests, it covered a broad remit. Division 1 of Part IV addressed dismissal of “unsuitable” members, Division 2 provided broad powers and processes for “discipline”, Division 3 addressed circumstances when an officer had been charged with criminal offences, and Division 4 provided for broad powers of inquiry for an officer’s fitness other than unfitness “caused by any infirmity of mind or body”. Part IV also addressed powers to test members for alcohol or drugs of dependence (Division 4A) and matters concerning suspension (Division 5).

[86] Part V of the Police Regulation Act established the Police Appeals Board. Among other matters, s.91F established a statutory right of review of any decision of the Chief Commissioner to terminate a member’s appointment. Other decisions where a right of review existed included decisions concerning promotion, compulsory transfers and various determinations made under Part IV. Part V set out in detail the composition, powers, and processes of the Police Appeal Board.

[87] Section 16B was not materially changed in any relevant way for this proceeding during the life of the CPIR Act nor upon the commencement of the Referral Act. Under the Victoria Police Act, s.67 now provides for ill-health retirement and empowers the Chief Commissioner to inquire into “the physical or mental fitness and capacity of the officer to perform his or her duties”.

[88] The Police Association drew attention to regulation 201 of the Police Regulations 1992 (Vic), which provided as follows at the time the Referral Act was passed:

“Regulation 201 Appointments

(1) A person who –

***

(d) Has the mental capacity and physical fitness to be able to perform the duties of a member of the Force and who has completed a medical examination to the satisfaction of the Police Medical Officer.

[89] It is the Police Association’s submission that the preferred construction of the expression “mental and physical capacity” relates to the “appointment” of officers.

[90] The Victoria Police Act was assented to on 17 December 2013 and came into operation on 1 July 2014. Section 67 of the Victoria Police Act is slightly more proscriptive than s.16B of the Police Regulation Act but is broadly reflective of the same subject matter and powers, including the power to terminate an officer’s appointment. Under the Victoria Police Act, a statutory right of review remains for a decision to terminate an officer’s appointment: see Division 2 of Part 8 and s.146. The body hearing such a review is now the Police Registration and Services Board.

Consideration

Construction of s.5(2)(b)

[91] Sections 4 and 5 of the CPIR Act were considered by the Full Court in Dempster v Comrie (2000) 96 FCR 570 (Dempster v Comrie). That case concerned a claim by the appellant that he had been transferred in his duties for reasons that included his activities as an officer of the Police Association for an alleged contravention of Part XA of the Workplace Relations Act 1996 (Cth) (WR Act). The relevant source of the referral said to support those provisions of the WR Act was claimed by the applicant to be s.4(6) dealing with “freedom of association”.

[92] Justice Kiefel, as her Honour then was, held (citations omitted, emphasis added):

“18 It is expressly stated, at the commencement of s 5, that "a matter referred by a sub-section of section 4 does not include" the matters which follow. Whilst not expressed as a proviso, the presumption referrable to the construction of provisos is apposite, namely that but for the proviso (here s 5), the enacting part of the section (s 4) would have included the subject matter of the proviso: …. As discussed earlier, the referring Act leaves the detailed implementation of the laws relating to employees', and others', freedom of association to the Commonwealth. But for s 5(1)(b) the subject of the laws could have, and most likely would have, included a reference to transfers, promotions etc of law enforcement officers in Victoria. The effect of that paragraph is, however, to excise those actions in relation to employees who are law enforcement officers from the subject of the reference. That is not to say that all provisions relating to freedom of association are denied operation with respect to those officers, although it seems doubtful that there remains anything of real utility, given that the conduct or actions listed in s 5(1)(b) would seem to encompass much of what would otherwise amount to proscribed conduct under s 298K. The terms in which the referring Act have been drafted require the provisions of Part XA WRA to be read with the Act. The result is that ss 298K and following may be read as referrable to conduct by employers in Victoria, save where the conduct has a connexion with the conduct listed in s 5(1)(b) and relates to law enforcement officers. Whilst the result is that a right or protection afforded to others is withheld from those officers, the clear terms of the referring Act must be given effect to: ….

19 In the approach I have taken, I have not found it necessary to resort to the history of and changes effected to the legislation, nor to the Minister's statements about what was sought to be achieved by the reference. The changes effected to the state legislation show that the topic of freedom of association was not one in respect of which the state wished to legislate after the reference. The maintenance of the Commissioner's powers under the Police Regulation Act is consistent with the operation of the exception in s 5 of the referring Act. The Commissioner's right of control with respect to appointments, transfers and the like was the subject of mention by the Minister. I did not, however, consider that the statements were necessarily directed to the operation of ss 4 and 5. The substantial part of the statements about the referring Act centred upon the need to avoid the re-employment of corrupt officers, which the previous industrial law system had permitted, it was said. In one passage towards the conclusion of the address the Minister did refer to the need for the Commissioner to retain control over transfers and appointments, but it was not suggested that that required the denial of the freedom of association provisions.

20 In any event it was not, in my view, necessary to have regard to extraneous matters. The question on the appeal is resolved by giving effect to the plain words of ss 4 and 5. It might be thought that to give effect to s 5(1)(b) is to exclude the application of Part XA WRA to only one group of employees. Pars (l) to (k) of s 5(1) also show an intention to exclude categories of persons from any of the subjects of the references in s 4.”

[93] To similar effect, Lehane J (with whom Moore J relevantly concurred) first observed at [28] that what is “plain is that each of the paragraphs of s 5(1) excises from some or all of the subsections of s 4 some of the subject matter which would otherwise fall within them. … ” His Honour concluded that s.5(1)(b) should not be taken to operate differently.

[94] His Honour then made some observations about how the case was put for the appellant (which his Honour rejected) regarding the construction of the CPIR Act that have some bearing before me.

“31 Senior counsel for the appellant submitted that it was unnecessary to read each paragraph of s 5(1) as limiting all subsections of s 4 and that to construe s 4(6) and s 5(1)(b) as I have done is to give undue effect to the exclusion and too little effect to the general referral of power in s 4(6). A construction should not readily be adopted, it was said, which would deprive the Commonwealth Parliament of power to legislate with respect to conduct of the kind specified in s 5(1)(b) even where that conduct was "victimising and discriminatory". Instead, s 5(1)(b) should be construed as limited to laws directly concerned with the kinds of conduct referred to (such as probation, promotion or transfer) and as having nothing to say, by way of limitation or otherwise, about the broad and entirely different subject matter of s 4(6), namely freedom of association.

32 As a matter of language, however, and as a matter of the structure of s 4 and s 5, I do not think that that submission can be accepted. It may be that s 4(6) deals with a particular, and broad, subject matter; however, s 4(6) is one of the several subsections of s 4; and the opening words of s 5(1) do not encourage any discrimination between the various subsections of s 4. To the extent that a matter is one pertaining to a subject matter described in any of the paragraphs of s 5(1), the referral of power in relation to a more general "matter" falling within a subsection (that is, any of the subsections) of s 4 does not extend to it.”

[95] While Dempster v Comrie was a case concerning the “transfer” exception in the (then) excluded subject matters of referral under the CPIR Act, I consider it would be contrary to the reasoning of that decision to apply different principles of interpretation to either the “physical or mental fitness” or “termination” statutory subjects in s.5(1)(b) of the CPIR Act or the Referral Act. In particular, the respective judgments of Kiefel and Lehane JJ make clear to me that:

•  The plain words of the exclusion should be given effect to.

•  It is not appropriate to read the provisions with a view to narrowing the plain words of the exclusion with a view to expanding the substantive referral upon matters such as victimisation or discriminatory conduct.

•  Subject to the terms of the references (and exclusions), an interpretation that is consistent with the maintenance of the Chief Commissioner’s powers on the excluded subject matters is not inappropriate.

[96] The Police Association asserts that clause 119 of the Agreement is intended to replicate anti-discrimination protections under State and Commonwealth law concerning the making of “reasonable adjustments” for employees by employers. It appears implicit in the Police Association’s purposive approach to the interpretation of the Referral Act that the exclusion in s.5(2)(b) of the Referral Act should be read to accommodate such an outcome.

[97] The Police Association relied on Parks Victoria at [350] – [353] in support of its construction of the Referral Act. I do not consider that decision provides support. In those paragraphs, the Full Bench was considering the scope of the implied constitution principles in Re AEU and related cases, as embodied in s.5(1)(a) of the Referral Act. It was not a case concerning the specific exclusions for law enforcement officers in s.5(2)(b). An important aspect of the High Court’s reasoning (cited in Parks Victoria at [349]) was that the provisions in the Schedule under consideration did “no more than specify a procedural regime.” While I will return to this question below, I consider that the relevant provisions in s.119.17 in particular go much further than establishing a procedural regime.

[98] I disagree that the terms of s.5(2)(b) of the Referral Act support the construction that the Police Association appears to place upon it. It strains the plain words of the exclusion and is contrary to how I understand the provisions were interpreted in Dempster v Comrie.

[99] Dempster v Comrie was decided before the Referral Act was made. Save as to the exception in s.5(2)(b)(i)-(ii) (which I will return to below) section 5(2)(b) of the Referral Act is materially identical to the relevant parts of s.5(1)(a)&(b) of the CPIR Act, as was in force when Dempster v Comrie was decided and as was in force when the Referral Act became law.

[100] Where the “Parliament repeats words which have been judicially construed, it is taken to have intended the words to bear the meaning already 'judicially attributed to [them]’”. 5 In the present case, I do not consider that the re-enactment intended to change the meaning of the excluded subject matter.

[101] The extract of the second reading speech set out above did not indicate a different intention in respect of law enforcement officers and nor, in my view, did the Explanatory Memorandum to the Bill. The Explanatory Memorandum relevantly stated (emphasis added):

“Subclause (2) excludes from the references certain matters in respect of law enforcement officers that are additional to the matters excluded under subclause (1).

Subclause (2) is intended to exclude the same matters in respect of law enforcement officers as the exclusion in section 5(1)(b) of the Commonwealth Powers (Industrial Relations) Act 1996, save for the excepted matters in subclauses (2)(b)(i) and (2)(b)(ii).

Subclause (2)(b)(i) is intended to allow the Commonwealth Fair Work Act and instruments made under that Act to deal with the payment of allowances or reimbursement of expenses for law enforcement officers, and with notice of termination of employment and payment in lieu of notice for law enforcement officers, to the same extent (and subject to the same exclusions under subclause (1)) as they may deal with these matters in respect of public sector employees who are not law enforcement officers.

Subclause (2)(b)(ii) is intended to allow the unlawful termination provisions in Divisions 1 and 2 of Part 6-4 the Commonwealth Fair Work Act as enacted, to apply to law enforcement officers to the same extent (and subject to the same exclusions under subclause (1)) as they may apply to public sector employees who are not law enforcement officers.

Insofar as a matter excluded from the references under clause 4(1) by clause 5 does not fall within the terms of the references, the matter is excluded for the avoidance of doubt.”

[102] As noted, s.5(2)(b) of the Referral Act contains two exceptions that did not appear in the equivalent provisions in the CPIR Act. I do not consider that the two exceptions in s.5(2)(b)(i)-(ii) affect in the construction of the preceding terms of s.5(2)(b), although they will affect its operation according to their terms.

“Pertaining to”

[103] I intend to follow the approach described in Parks Victoria at [296]:

“The primary issue for determination is whether the impugned clauses deal with any excluded subject matter. In essence this involves the proper characterisation of the impugned clauses and an assessment as to whether they deal with excluded subject matter. The industrial merit of the impugned clauses is irrelevant to this task. …”

[104] The words “pertaining to” are steeped in history, particularly as they existed in the definition of “industrial matters” under the Conciliation and Arbitration Act 1904 (Cth). That case law generally considered those words in the phrase “all matters pertaining to the relations of employers and employees” 6 and similar variants of them7. Care must be taken to avoid conflating cases concerning “the relations of employers and employees”. The issue before me is whether clauses 119.13 or 119.17 of the Agreement are matters “pertaining to” the “physical or mental fitness” of law enforcement officers or are “pertaining to” the “termination of employment” of law enforcement officers.

[105] The words “pertaining to” mean “belonging to” or “within the sphere of”. 8

[106] The words “physical or mental fitness” of law enforcement officers are not defined. In my view, they have their ordinary meaning and reserve to the State of Victoria, in broad terms, questions about the “physical or mental” fitness of law enforcement officers (as distinct from moral fitness, or capacity through work ethic or acuity, and the like).

[107] I consider that the phrase “termination of employment” has clear meaning. So far as s.5(2)(b) of the Referral Act excludes matters pertaining to the termination of employment, it would apply to provisions of enterprise agreements that sought to regulate processes or conditions that ought to be complied with before the Chief Commissioner could exercise a power to otherwise terminate the appointment of an officer.

[108] In Dempster v Comrie, Kiefel J set out in some detail extracts from the Minister’s second reading speech that were made while the CPIR Act was a bill before the Parliament of Victoria. While her Honour also noted that the “substantial part” of the Minister’s second reading speech relating to law enforcement officers was with respect to issues of corruption, she stated that:

“The maintenance of the Commissioner's powers under the Police Regulation Act is consistent with the operation of the exception in s 5 of the referring Act.”

[109] From the Minister’s second reading speech extracted in her Honour’s judgment, the Minister stated (emphasis added):

“… This amendment, and the others that relate to it, result from the government's belief that it is important that matters already covered by, for example, the Police Regulation Act 1958 continue to be the domain of state government and that they correctly relate to the powers which should be exercised judiciously and fairly by police command.

The amendment is broadly a restatement of the status quo in Victoria. The government and police command believe it is important. …”

And

“There are certainly long-standing legal and legislative precedents for police forces being uniquely different, as in the case with defence forces. When people join a police or defence force, they do so in the knowledge that they are joining a military-type organisation that has statutory protection responsibilities. As Premier Carr in New South Wales has found, that means having a different industrial relations regime for the police. That industrial relations difference is the status quo in Victoria, and these amendments will retain that status quo as a right. Police Command will have the capacity to discipline or geographically transfer officers and give directions on other matters such as the colour of the uniform or the style of the dress, and the disgraceful legalisms which have been allowed to exist in other states which have led to crook cops being put back into the police force, will not occur here. The government says up front that members of the police force are different from other public sector employees. It is not just that the Victorian government happens to agree with the Carr government on this matter. The government also draws the attention of the house to recommendations of the New South Wales royal commissioner that a number of measures be introduced into the New South Wales police force on which the Carr government has acted. Those measures are a clear indication of the type of command required by the chief commissioner. They include the right of the commissioner to control appointments, transfers and removals, and broad-ranging disciplinary powers. It is correct to do this; and the government does so openly and honestly. It represents the status quo in Victoria, but the government emphasises that in the absence of these provisions the legalisms of the industrial relations system – it is fairly cheap IR law, more politics than law - would be able to prevail' ."”

[110] I have set out earlier in my decision the powers of the Chief Commissioner under s.16B of the Police Regulations Act, as it relevantly applied at the time. That included a broad power to inquire “into the fitness and capacity of the member to discharge the duties of office”. That inquiry might lead to a decision to retire on the grounds of ill health, where the Chief Commissioner was satisfied that the member was “incapacitated for the performance of his duty by infirmity.

[111] I consider that the powers of the kind described by s.16B of the Police Regulation Act were the very kind of powers that were reserved to the Chief Commissioner and the State of Victoria by the exclusion of matters pertaining to the physical or mental fitness of law enforcement officers under the CPIR Act. I consider that the reservation of those matters was unchanged under s.5(2)(b) of the Referral Act, save as to the two specific new matters in s.5(2)(b)(i)-(ii) of the Referral Act.

[112] All considerations respectfully point to that conclusion: the broad language used in the Referral Act; the requirement to apply their plain and ordinary meaning (and not to strain for preferred meanings, as cautioned by Lehane J); the regulatory state of affairs within the domain of the Victorian government at all relevant times (including statutory rights of appeal and review); and the extrinsic material in the second reading speeches.

[113] My views on the scope of the exclusion in the Referral Act for matters pertaining to the termination of employment of law enforcement officers can be stated much more briefly. I consider it very clear that the State of Victoria, by s.5(2)(b) of the Referral Act, has reserved to itself all matters pertaining the termination of such employment, by whatever means, albeit recognising that there remains a long-standing regulation of that sphere by the State of Victoria under Victorian law. The only qualification to the breadth of that exclusion is supplied by the further exclusions in ss.5(2)(b)(i)-(ii).

[114] Sections 5(2)(b)(i)-(ii) effectively reinstate the subject matter they describe back into the initial grant of referral contained in s.4 of the Referral Act. I will refer to ss.5(2)(b)(i)-(ii) as the ‘re-inclusion’ provisions (to avoid clumsier expressions such as ‘an exclusion to an exclusion’.) As with the exclusions in s.5(1) or s.5(2), the re-inclusion provisions are to be given their plain meaning: cf. Dempster v Comrie.

[115] The re-inclusion provision in s.5(2)(b)(i) has no obvious bearing upon the exclusion of matters pertaining to physical or mental fitness, as is relevant to the dispute before me. That is not to say it is incapable of limiting the broad exclusion of that subject matter, but it might be about matters such as, for example, reimbursement of expenses that are incurred in connection with assessing physical or mental fitness.

[116] The re-inclusion provision in s.5(2)(b)(i) clearly affects the exclusion of matters pertaining to termination of employment in a particular way. By s.5(2)(b)(i), the Referral Act relevantly permits the regulation of the termination of employment so far as it pertains to “notice” of termination of employment and “payment in lieu of notice” of termination of employment. On its plain meaning, these provisions would support terms in an enterprise agreement – or the FW Act itself – requiring the giving of notice prior to the termination of employment and payment in lieu. So much was reflected in the Explanatory Memorandum to the Fair Work (Commonwealth Powers) Bill 2009:

“Subclause (2)(b)(i) is intended to allow the Commonwealth Fair Work Act and instruments made under that Act to deal with the payment of allowances or reimbursement of expenses for law enforcement officers, and with notice of termination of employment and payment in lieu of notice for law enforcement officers, to the same extent (and subject to the same exclusions under subclause (1)) as they may deal with these matters in respect of public sector employees who are not law enforcement officers.”

[117] Section 5(2)(b)(i) does not otherwise affect the power reserved to the State of Victoria (through the Chief Commissioner) to terminate the appointment of law enforcement officers.

[118] The re-inclusion provision in s.5(2)(b)(ii) is different. Importantly, the scope of this re-inclusion provision is not about matters “pertaining” to the subject matter described but is expressed to apply “to the extent that” Divisions 1 and 2 of Part 6-4 of the FW Work Act, as originally enacted, “deal with the matters”. The Explanatory Memorandum states:

“Subclause (2)(b)(ii) is intended to allow the unlawful termination provisions in Divisions 1 and 2 of Part 6-4 the Commonwealth Fair Work Act as enacted, to apply to law enforcement officers to the same extent (and subject to the same exclusions under subclause (1)) as they may apply to public sector employees who are not law enforcement officers.”

[119] It can be presumed that, but for s.5(2)(b)(ii), the exclusion in the substantive parts of s.5(2)(b) would prevent the matters is Divisions 1 and 2 of Part 6-4 of the FW Work Act being supported by the grant of referral is s.4 of the Referral Act. 9 So far as other exclusions in s.5(2)(a) apply, s.5(2)(b)(ii) does not affect them.

[120] The key provision in Divisions 1 and 2 of Part 6-4 of the FW Work Act is set out above. It provides for certain rights following a termination of employment. While an “employee” in Divisions 1 and 2 of Part 6-4 of the FW Work Act has its ordinary meaning, it is extended by s.30E of the FW Act to include law enforcement officers.

[121] I consider that the effect of s.5(2)(b)(ii) is to permit law enforcement officers from Victoria to access those rights and it does not extend further.

[122] Victoria Police submits that:

“There is no basis in the text or structure of s5(2)(b) of the Referral Act, nor in the extrinsic material that the parties have provided to the Commission, to support the PFA’s apparent contention that the bases of unlawful termination set out in s772(1) of the FW Act operate to dilute the subject matter exclusions in the chapeau beyond the ability of a person who is an employee in the ordinary sense being able to bring an application for a contravention of s772(1).”

[123] I accept that submission.

Consideration – Agreement cl.119.17

[124] Having regard to the above matters, I conclude that cl.119.17(a) – (c) of the Agreement are each matters excluded from the Referral Act by s.5(2)(b). They are excluded because the particular subject matter of those subclauses of the Agreement pertain to “physical and mental fitness” and to “termination of employment”.

[125] Having regard to the re-inclusion provision in s.5(2)(b)(i), I am satisfied that the opening subclause in the chapeau to cl.119.17 is supported by the Referral Act. Those words are “On the provision of 21 days’ notice the employee may be discharged on medical grounds”. In my view, that subclause clearly pertains to “notice of termination of employment”, which is a matter specifically supported by reason of s.5(2)(b)(i) of the Referral Act.

[126] Section 5(2)(b)(i) does not otherwise support the subject matter of cl.119.17(a)-(c) of the Agreement as being matters pertaining to notice of termination of employment (or any other subject matter in that re-inclusion provision). Rather, subclauses 119.17(a) – (c) each establish substantive conditions that must be satisfied before valid notice can be given. Those conditions do not concern “notice” (or payment in lieu) at all. They are matters that require satisfaction on a range of unrelated matters, such as the employer being unable to provide duties that comply with the stated medical conditions, and that the medical conditions be “likely to continue indefinitely”.

[127] Based on the conclusions I have previously provided, I do not consider that s.5(2)(b)(ii) and Divisions 1 and 2 of Part 6-4 of the FW Work Act otherwise limits the substantive operation of s.5(2)(b), although of course it would be open for an officer dismissed from the force to institute a claim based on a contravention of those provisions if he or she considered such rights were enlivened.

Consideration – Agreement cl.119.13

[128] Clause 119.13 raises different considerations. The subject matter of cl.119.13 is primarily concerned with “conflict as to the employee’s capacity for duty”. The clause provides a mechanism by which the Police Medical Officer “must” review their opinion where such conflict exists. The “capacity” described is one arising from illness or injury, as the preceding clauses of cl.119 make plain.

[129] In my view, the matters in cl.119.13 clearly pertain to the “physical or mental fitness” of law enforcement officers. In doing so, if follows that the clause is not supported by the Referral Act, as those matters are excluded from the grant of referral by s.5(2)(b) unless the re-inclusion provisions apply.

[130] Clause 119.13 does not, in direct terms, refer to termination of employment. Nonetheless, when the dispute was raised before the Commission, it was on the basis that where the provisions of cl.119.13 had not be fulfilled, then the “relevant delegate could not be satisfied that the preconditions for ill health retirement are met.” Those preconditions are the ones set out in cl.119.17(b) in the matter before me.

[131] In subsequent written submissions, the Police Association put the operation of cl.119.13 differently. It stated “Clause 119.13 is a review mechanism as to the soundness of the medical advice to be forwarded to the Chief Commissioner. It places no obligation on him to exercise his discretion one way or another” (emphasis added).

[132] It is ultimately unnecessary to resolve these issues, given my conclusion that cl.119.13 is excluded because it pertains to physical or mental fitness. Nonetheless, there is force to the Police Association’s initial position, which is that cl.119.13 (if enlivened) needs to be complied with before notice by cl.119.17 could be given. Subclause 119.17(b) refers to the “stated medical limitations”. While those limitations are those stated by the Police Medical Officer, cl.119.13 suggests that, where that clause had been invoked, the stated medical limitations are those stated following a review under that clause. On this reading, it is arguable that satisfaction of cl.119.13 would be a necessary precondition to a medical discharge under cl.119.17. If that were the case, however, it follows that cl.119.13 would be independently excluded by s.5(2)(b) of the Referral Act, as it would pertain to termination of employment.

[133] As with cl.119.17, I do not consider that s.5(2)(b)(i) or (ii) of the Referral Act provides otherwise.

Conclusion

[134] The question for the jurisdictional hearing was:

“Is the Commission precluded from dealing with a dispute about clauses 119.13 and/or 119.17 of the enterprise agreement by operation of s5(2)(b) of the Fair Work (Commonwealth Powers) Act 2009 (Vic)?”

[135] For the reasons I have given, my answer in respect of cl.119.13 is “yes”, on the ground that the clause pertains to “physical and mental fitness” (and it was unnecessary to decide whether cl.119.13 pertained to termination of employment). My answer in respect of cl.119.17 is “yes” for the part of clause 119.17 after the words “On the provision of 21 days’ notice the employee may be discharged on medical grounds”, on the ground those parts of the clause pertain to “physical and mental fitness” and to “termination of employment”.

[136] The jurisdictional objection is upheld and, accordingly, I order that the application is dismissed.

DEPUTY PRESIDENT

Appearances:

C. Kennedy from the Police Federation of Australia
M. Garozzo of Counsel for Victoria Police/Chief Commissioner of Police

Hearing details:

2022.
Melbourne:
Tuesday 24 May

Final written submissions:

8 June 2022 for the Applicant
17 June 2022 for the Respondent

Printed by authority of the Commonwealth Government Printer

<PR743850>

 1   Where a State instrumentality establishes a body corporate, it may nonetheless be a “constitutional corporation” if it is a trading or financial corporation. Such was the case for the Country Fire Authority of Victoria, as held by the Full Court of the Federal Court in United Firefighters’ Union of Australia v Country Fire Authority (2015) 228 FCR 497. As the activities of the Victoria Police are conducted through the Chief Commissioner of Police, those issues do not arise for consideration here.

 2   NSWCommissioner of Police v Cottle [2022] HCA 7 at [9] (Kiefel CJ, Keane, Gordon and Steward JJ), citations omitted.

 3   Parks Victoria v Australian Workers’ Union (2013) 234 IR 242 at [294], citations omitted. To similar effect, see United Firefighters Union of Australia v Country Fire Authority (2014) 218 FCR 210 (Murphy J) at [145], which was unaffected on appeal.

 4   Victorian Parliamentary Hansard, Legislative Assembly 2 June 2009, at p1437.

 5   Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher (2015) 254 CLR 489 at [15] (the Court), citing Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96 at 106.

 6   See, for example, R v Portus; Ex parte Australia & New Zealand Banking Group Ltd (1972) 127 CLR 353

 7   See, for example, Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309

 8   Australian Maritime Officers Union v Sydney Ferries Corporation (2009) 190 IR 193 (Black CJ, Jessup and Buchanan JJ), citing R v Kelly; Ex parte Victoria (1950) 81 CLR 64

 9   Dempster v Comrie, [18] (Kiefel J).