My primary research focus is employment law, both in Australia and internationally. I have also undertaken research into sports law, industrial relations, and commercial law, as well as learning & teaching in the university sector.
Significant workplace change requires consultation, and standard consultation obligations exist u... more Significant workplace change requires consultation, and standard consultation obligations exist under legislation and statutory instruments. However, those provisions offer minimal guidance on how to approach consultation. The consultation cases tend to focus on compliance, adding little beyond saying consultation needs to be meaningful. Building on the foundation laid by the 2021 decision in Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd, this article considers what the parameters of the obligation to consult might — or should — be. It shows that there is an over emphasis in the authorities on timing, as a compliance trigger, rather than the substance of the obligation, and major decisions continue to show the obligation is poorly understood. It argues that clear parameters are needed on how to implement the duty to consult, and that these parameters need to come from statute or clear authority of the courts. Without restricting the inherent flex...
The federal government is committed to removing laws restricting the use of independent contracto... more The federal government is committed to removing laws restricting the use of independent contractor arrangements. Yet many independent contractors are really dependent workers. Changing the law, then, will produce a new class of workers who are effectively employees but no longer recognised and protected as such, according to Giuseppe Carabetta and Cynthia Coleman
Significant workplace change requires consultation, and standard consultation obligations exist u... more Significant workplace change requires consultation, and standard consultation obligations exist under legislation and statutory instruments. However, those provisions offer minimal guidance on how to approach consultation. The consultation cases tend to focus on compliance, adding little beyond saying consultation needs to be meaningful. Building on the foundation laid by the 2021 decision in Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd, this article considers what the parameters of the obligation to consult might — or should — be. It shows that there is an over emphasis in the authorities on timing, as a compliance trigger, rather than the substance of the obligation, and major decisions continue to show the obligation is poorly understood. It argues that clear parameters are needed on how to implement the duty to consult, and that these parameters need to come from statute or clear authority of the courts. Without restricting the inherent flexibility that is needed for consultation to work, or impeding the employer’s prerogative to make decisions, it asserts that there is a need for a deeper legal underpinning, and more active obligations, to shift the concept away from the conflictual paradigm of consultation being ‘triggered’ towards a more collaborative and productive approach.
The hundred-year-old common law rule that police officers are not employees has reared its head a... more The hundred-year-old common law rule that police officers are not employees has reared its head again as Victorian police officer Justin Boyer claims compensation for severe injuries he claims he met within his duties. I n the matter currently before the Victorian Supreme Court, the Crown and Victoria Police are arguing that because police officers are not employees at common law, there can be no duty of care owed to the claimant, and thus no compensation is owed. The leading decis ion on the relationship between the Crown and members of the Police Force is A-G (NSW) v Perpetual Trustee Co Ltd, a 1955 decision, in which the Crown, in fact failed in arguing that police officers are employees.
The New South Wales Court of Appeal recently considered what obligations employers have when send... more The New South Wales Court of Appeal recently considered what obligations employers have when sending employees to face psychologically traumatic incidents on a day-to-day basis. New South Wales v Briggs1 concerned a police officer who developed Post Traumatic Stress Disorder (PTSD) and was discharged from service. Leeming JA (McColl and Ward JJA agreeing) affirmed that a court must have regard to what general instruction or system of work should have been in place to protect employees working in a traumatic environment. Unsatisfied that such a system was identified, the Court overturned the District Court decision2 that the NSW Police Service was liable in negligence for psychological injuries that the claimant officer sustained in the course of his duties. Briggs is significant in defining the scope of the duty of care the Crown owes public sector employees under statute and at common law. It also offers some insight into how the Court of Appeal sees the position of police officers at common law and raises questions about the role of a right to privacy in the modern workplace.
On 3 December 2021, the Full Bench of the Fair Work Commission (Justice Ross, Vice President Cata... more On 3 December 2021, the Full Bench of the Fair Work Commission (Justice Ross, Vice President Catanzariti, Deputy President Saunders, Commissioner O’Neill and Commissioner Matheson) handed down its decision in CFMMEU v Mt Arthur Coal Pty Ltd.1 The decision concerned a COVID-19 vaccine mandate imposed by Mt Arthur Coal Pty Ltd (Mt Arthur). The mandate gave employees a month to obtain a first COVID-19 vaccine, in which time the Construction, Forestry, Maritime Mining and Energy Union (CFMMEU) brought a challenge to the direction. They were successful, with the Commission ultimately striking down the direction, but only on very narrow grounds relating to a failure to consult. The decision – the first regarding an employer COVID-19 mandate not supported by a public health order – offers insights from a five-member bench about the views of the Commission on vaccine mandates issued by employers, helped by the narrow set of issues in dispute. Neither side contested the science on COVID-19. Nor was there any suggestion that the direction was lawful (or unlawful) on the basis of government health orders, contract or the relevant enterprise agreement. Instead, the only question was whether or not the employer’s vaccine mandate was a ‘lawful and reasonable’ direction. Ultimately that question turned on whether in introducing the mandate the employer had met its consultation obligations under workplace health and safety laws.2 However, beyond addressing important questions about the content of those obligations, the decision reaffirms a number of general propositions relating to the application and scope of the implied duty. It ultimately also provides useful guidance for employers and employees regarding the legalities of mandatory workplace vaccination policies specifically.
This article proposes an alternative model for the regulation of police collective bargaining dis... more This article proposes an alternative model for the regulation of police collective bargaining disputes under the Fair Work Act 2009 (Cth). Its central recommendation is that a North American-style mandatory interest arbitration model should be applied to police officers and other emergency services employees operating under the Fair Work Act 2009 or analogous marketbased bargaining regimes. Specifically, a mediation-arbitration model of interest arbitration-combined with "active" mediation and a tripartite arbitration panel design-is proposed, together with a number of related measures aimed at encouraging bargaining, such as, negotiation timelines. It is argued that as well as providing a guaranteed closure mechanism for police collective bargaining disputes, the proposed model would give neutrals a better understanding of the underlying needs of the parties in a law-enforcement context; and simultaneously encourage negotiated or at least mediated outcomes for police officers. Australian jurisdictions, either via further referrals of State powers or (as now seems more likely) the enactment of parallel State legislation: see Giuseppe Carabetta, "Fair Work and the Future of Police Industrial Regulation in Australia" (2011) 24(3)
The essential duties that police officers perform, and the absence of a right to strike, creates ... more The essential duties that police officers perform, and the absence of a right to strike, creates the need for an effective, impartial procedure for the resolution of bargaining disputes. This article argues that, with the shift of focus under the Fair Work Act 2009 (Cth) to good-faith bargaining, police officers have been left without an effective dispute resolution mechanism, partly because of the limitations on arbitration but also because of uncertainties surrounding the scope of the 'protected action' provisions of the Act for police officers. Following a review of police pay-setting arrangements in comparable jurisdictions, this article examines and proposes options for an alternative model, including a mandatory 'finaloffer' arbitration ('FOA') model as used for police bargaining in Canada, New Zealand and the United States. Research shows that-aside from providing an effective closure mechanism for bargaining disputes where strikes or lock-outs are unavailable-mandatory FOA offers a range of benefits to police bargaining, and could provide an ideal 'fit' for the current bargaining-centred system. The article's findings are of significance not only to police officers, but to all emergency services workers covered by the Fair Work bargaining regime.
Ontario and British Columbia, Canada, have not seen a police or fire workers strike in living mem... more Ontario and British Columbia, Canada, have not seen a police or fire workers strike in living memory. The reason for this is the mandatory interest arbitration model adopted in the two provinces, which sees disputes that cannot be resolved by mutual bargaining referred to a panel of arbitrators who assess submissions in light of statutory criteria. Police officers, and the unions who represent them, have utilised this model to increase pay and improve working conditions often, employers say, without regard to ‘ability to pay’. This paper assesses that claim against the results the model produces and how insiders understand the system as operating. Its conclusion is that interest arbitration has produced good results, especially for police and emergency workers and the community they serve, but the means of getting there have soured relations and may need reform to remain sustainable into the future.
Labour standards adopted under the auspices of the ILO constitute the principal international inf... more Labour standards adopted under the auspices of the ILO constitute the principal international influences on public sector collective bargaining; it is those standards that are the subject of this article. Focusing on the position of essential public sector employees, ILO principles concerning collective bargaining, dispute settlement and the right of workers to withdraw their services as part of bargaining are examined. Particular attention is devoted to the application of ILO standards to essential public sector employees and police officers; and the extent to which Australian law complies with these standards. The ILO supervisory bodies have acknowledged that restrictions on the general right of workers to collectively bargain and to strike can be justified in the case of essential public employees, but only on a minimal or proportional analysis. The ILO has also emphasised that any restrictions on the right to strike must be compensated by adequate, impartial and speedy conciliation and arbitration processes. It is shown, however, that with respect to essential public employees and police officers operating under the Fair Work Act 2009 (Cth), Australian law falls short on both of these scores, with a resultant uncertainty regarding the right of these workers to bargain collectively.
This article examines the origins of this rule, and argues that it is without proper foundation a... more This article examines the origins of this rule, and argues that it is without proper foundation and also lacks modern support. The implications of the rule, particularly from the perspective of state-appointed police officers in Australia, are also discussed. The rule is presented as being not only inequitable, but also incompatible with state police officers' current (statutory) employment rights, including their rights under federal industrial laws. It is argued, however, that the current common law position ought to be reexamined not through further legislative reform, but through judicial intervention.]
This article examines the operation and likely impact of the Fair Work Act 2009 (Cth) (FW Act) fo... more This article examines the operation and likely impact of the Fair Work Act 2009 (Cth) (FW Act) for police. It highlights the tensions between the uniqueness and essentiality of police service and the generalised provisions of the FW Act, and calls for closer attention to be paid to developing alternative dispute resolution arrangements for police. The article also advocates for closer attention to be paid to the approach to the exclusion of matters from the FW Act for police, to minimise current uncertainties and gaps in the regulatory framework, and to achieve a more coherent framework for the regulation of police industrial relations matters. The article also addresses the prospect of a federally-based industrial model for state police. It argues that, based on the Victorian experience, if a similar approach were applied in other state jurisdictions this would be problematic for the regulation of police industrial relations in state police services.
Australian public sector employees are largely governed by generalised labour law statutes. This ... more Australian public sector employees are largely governed by generalised labour law statutes. This article examines how alternative dispute resolution mechanisms available under those laws impact the unique bargaining context of public sector employees, particularly in the emergency services sector. In order to draw conclusions on the most appropriate models for emergency services employees, the article reviews the subsets of conciliation, mediation and arbitration mechanisms employed in Australia and similar jurisdictions overseas, with reference to the standards set by the International Labour Organization. This examination provides a backdrop which can inform not only how lawmakers should design dispute resolution mechanisms but also how bargaining parties should approach voluntary and compulsory mechanisms in the public sector.
Australian courts have in more recent times questioned the need for the continued existence of th... more Australian courts have in more recent times questioned the need for the continued existence of the Crown’s common law or prerogative right to dismiss its servants ‘at pleasure’, for any reason or no reason without any right to be heard, and without prior notice before dismissal.1 The doctrine has been described as ‘exceptional, perhaps anachronistic’2 and ‘doctrinally erroneous . . . the cause of blatant injustice’.3 It has been severely criticised by academic commentators who argue that there can be no real justification for the rule.4 Recently, in a decision which will have major implications for a range of public sector employees, the High Court has signaled that there may now be little room left for this principle in Australia.5 The statutory provisions relevant to Jarratt stemmed from a wave of 1980s reforms aimed at bringing public sector management practices more into line with the private sector. These arrangements are said to promote flexibility and mobility within the public sector, in part by making it easier to transfer and remove executive officers.6 Mr Jarratt’s removal was effected by the Governor, acting under s 51(1) of the Police Service Act 1990 (NSW) (now the Police Act 1990) (the Act). The removal power under s 51(1) required that the removal by the Governor be on the recommendation of the Commissioner, who in turn required the approval of the Minister. Section 51(1) did not, in terms, require procedural fairness to be accorded to an executive officer. It simply stated that an executive officer could be removed from office ‘at any time’. It was widely believed, prior to the High Court’s decision in Jarratt that s 51(1) embodied the dismissal at pleasure principle, including a right to terminate in denial of natural justice.7 In Jarratt, however, the High Court held that the dismissal at pleasure notion was abrogated or displaced by the Act and that the Act had not excluded a right to procedural fairness. Further, in taking this approach, the court applied the presumption from Annetts v McCann,8 to the effect that (except where Parliament makes its contrary intention plain) statutory powers which can prejudice an individual’s rights or interests must be exercised in accordance with the rules of natural justice. This apparent shift in attitude is of particular significance in view of the tendency of the courts to construe statutes as not excluding the Crown’s right to dismiss its servants at pleasure. Indeed, a common theme in many of the earlier Australian decisions was that although statute was not required to bring the general rule into operation, on the other hand, clear statutory provisions were required to exclude the rule. The mere fact that in a particular case some aspects of the appointment were regulated by statute, or that a statutory dismissal power or procedure was applied, was not sufficient to qualify the rule in any way.
At common law, Crown servants hold office at the pleasure of the Crown.1 This extreme common law... more At common law, Crown servants hold office at the pleasure of the Crown.1 This extreme common law (or prerogative) right in the Crown exists unless, in a particular case, it is excluded by statute. Where it does exist and it is actually exercised, it enables the Crown to terminate the services of an officeholder or employee at will, without notice and for any reason or for no reason.2 It also enables the Crown to terminate the services of Crown servants without any requirement to observe the principles of natural justice.3 Most modern Australian public sector statutes abrogate or at least qualify the Crown’s absolute right to dismiss by providing elaborate safeguards against dismissal or by expressly excluding the common law rule. Many public sector employees nowadays also have access to general industrial law dismissal remedies including a right to lodge a claim for unfair dismissal. In a general sense, therefore, public servants enjoy security of tenure. Furthermore, even where the Crown’s prerogative right to dismiss has been expressly preserved by statute, it has very rarely been used; or, if it has, then only in cases where no other provision was available or where no other solution seemed possible.4 These factors do not, however, mean that dismissal at pleasure is an entirely irrelevant concept. In the highly controversial decision of Commissioner of Police for NSW v Jarratt,5 the Crown’s absolute right to dismiss was held to apply to a member of the New South Wales Police Senior Executive Service. This meant the officer concerned was not entitled to procedural fairness in respect of his removal from office, either by way of warning that his removal was under consideration, or by giving him an opportunity to be heard. The legislative provisions relevant to Jarratt were part of a wave of 1980s public sector reforms aimed at bringing public sector management practices more into line with private sector practices. A distinctive feature of these arrangements, as confirmed by Jarratt itself, is that they do not offer senior executive employees the usual range of protective measures. The Jarratt decision is also of interest, however, because of what is says about the question of whether, or in what circumstances, the dismissal at pleasure doctrine might be ousted by legislation. This is an issue that could potentially affect a broad range of public sector employees.6 Jarratt is also significant because of what it tells us about the relationship between the dismissal at pleasure doctrine and the obligation of procedural fairness. Specifically, one of the key issues before the court in Jarratt, and in the first instance proceedings before Simpson J, concerned the apparent conflict between these two concepts in the context of decisions which affect the rights or interests of particular individuals. This note will consider the treatment of these issues by Simpson J in her decision at first instance in Jarratt v Commissioner of Police for NSW,7 discuss the Court of Appeal’s approach to these and other related matters in its decision in Jarratt, and conclude with an analysis of some of the implications of these two decisions and the future directions of the law in this area.
Public Sector Wages ‘Cap’: The New Framework for the Determination of Public Sector Wages and Conditions in New South Wales, 2012
The Industrial Relations Amendment (Public Sector Conditions of Employment) Act 2011 NSW (the Ame... more The Industrial Relations Amendment (Public Sector Conditions of Employment) Act 2011 NSW (the Amendment Act) was assented to and commenced on 17 June 2011. In an unusual and highly controversial move that some have labelled ‘worse than Work Choices’,1 the new Act amends the Industrial Relations Act 1996 (NSW) (IR Act) to require the Industrial Relations Commission of New South Wales (the commission), when dealing with public sector wages claims, to give effect to certain aspects of government policy on conditions of employment of public sector workers. Any award or order of the commission that is inconsistent with the government’s declared policy has no legal force. The current policy2 is given effect via the Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 (NSW) (the Regulation). The Regulation applies to a wide range of public sector employees, including state teachers, health workers, transport workers, prison officers and other Crown employees.3 At the heart of the policy — aimed at reducing the state’s ‘wages bill’ — is a requirement that any increases to employee-related expenses above a 2.5% per annum ‘cap’, including wages and conditions of employment, must be offset by employee-related cost savings.4 In this note, I will outline the background and purpose behind the legislative and regulatory changes, highlight the key elements of the new legislative framework and the associated Regulation and wages policy, and reflect on some of the implications of the new initiatives for public sector pay disputes. In the course of the discussion I will also consider developments from three recent decisions where there has been some consideration of the operation and effect of the new scheme.
Arbitration has become the chosen method of resolving disputes over wages and conditions for poli... more Arbitration has become the chosen method of resolving disputes over wages and conditions for police and other emergency workers in Australia, Canada, the United States, Europe, and elsewhere. This is because emergency workers, by virtue of their essential status, cannot necessarily engage in industrial action such as strikes. In the police sector, New Zealand takes a unique approach to resolving such disputes by utilising a blend of mediation and "final-offer arbitration". As this article shows, New Zealand has seen more mutually acceptable negotiated outcomes and ensured the reliable provision of police services under this model. Ultimately though, as explained by interviews with leading practitioners, broader structural and environmental factors may in part explain New Zealand's success, suggesting it may not entirely be repeatable by police forces overseas.
For many employees, the time when there was a physical and temporal distinction between periods a... more For many employees, the time when there was a physical and temporal distinction between periods at work and away is a thing of the past. Instant communications over the internet and by mobile phones, including using social media, mean employers can monitor employees’ time on and off the clock. Courts and tribunals have responded to policies that seek to control employees when they are not at work. Seminally, in Rose v Telstra Corp Ltd (Rose), Ross VP gave three, alternate, criteria to determine if an employees’ conduct outside of work justified dismissal. This article examines the application of those criteria by courts and tribunals. It then critically analyses their operation in three fields where contract and statute particularly blur the line between on- and off-duty conduct – police, public sector workers and elite athletes – concluding that, although employees are generally entitled to treat their personal acts as personal, that protection can disappear in the face of an employer with a particular interest in its own reputation.
The essential duties that police officers perform, and the absence of a right to strike, creates ... more The essential duties that police officers perform, and the absence of a right to strike, creates the need for an effective, impartial procedure for the resolution of bargaining disputes. This article argues that, with the shift of focus under the Fair Work Act 2009 (Cth) to good-faith bargaining, police officers have been left without an effective dispute resolution mechanism, partly because of the limitations on arbitration but also because of uncertainties surrounding the scope of the ‘protected action’ provisions of the Act for police officers. Following a review of police pay-setting arrangements in comparable jurisdictions, this article examines and proposes options for an alternative model, including a mandatory ‘final-offer’ arbitration (‘FOA’) model as used for police bargaining in Canada, New Zealand and the United States. Research shows that — aside from providing an effective closure mechanism for bargaining disputes where strikes or lock-outs are unavailable — mandatory ...
Labour standards adopted under the auspices of the ILO constitute the principal international inf... more Labour standards adopted under the auspices of the ILO constitute the principal international influences on public sector collective bargaining; it is those standards that are the subject of this article. Focusing on the position of essential public sector employees, ILO principles concerning collective bargaining, dispute settlement and the right of workers to withdraw their services as part of bargaining are examined. Particular attention is devoted to the application of ILO standards to essential public sector employees and police officers; and the extent to which Australian law complies with these standards. The ILO supervisory bodies have acknowledged that restrictions on the general right of workers to collectively bargain and to strike can be justified in the case of essential public employees, but only on a minimal or proportional analysis. The ILO has also emphasised that any restrictions on the right to strike must be compensated by adequate, impartial and speedy conciliat...
Significant workplace change requires consultation, and standard consultation obligations exist u... more Significant workplace change requires consultation, and standard consultation obligations exist under legislation and statutory instruments. However, those provisions offer minimal guidance on how to approach consultation. The consultation cases tend to focus on compliance, adding little beyond saying consultation needs to be meaningful. Building on the foundation laid by the 2021 decision in Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd, this article considers what the parameters of the obligation to consult might — or should — be. It shows that there is an over emphasis in the authorities on timing, as a compliance trigger, rather than the substance of the obligation, and major decisions continue to show the obligation is poorly understood. It argues that clear parameters are needed on how to implement the duty to consult, and that these parameters need to come from statute or clear authority of the courts. Without restricting the inherent flex...
The federal government is committed to removing laws restricting the use of independent contracto... more The federal government is committed to removing laws restricting the use of independent contractor arrangements. Yet many independent contractors are really dependent workers. Changing the law, then, will produce a new class of workers who are effectively employees but no longer recognised and protected as such, according to Giuseppe Carabetta and Cynthia Coleman
Significant workplace change requires consultation, and standard consultation obligations exist u... more Significant workplace change requires consultation, and standard consultation obligations exist under legislation and statutory instruments. However, those provisions offer minimal guidance on how to approach consultation. The consultation cases tend to focus on compliance, adding little beyond saying consultation needs to be meaningful. Building on the foundation laid by the 2021 decision in Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd, this article considers what the parameters of the obligation to consult might — or should — be. It shows that there is an over emphasis in the authorities on timing, as a compliance trigger, rather than the substance of the obligation, and major decisions continue to show the obligation is poorly understood. It argues that clear parameters are needed on how to implement the duty to consult, and that these parameters need to come from statute or clear authority of the courts. Without restricting the inherent flexibility that is needed for consultation to work, or impeding the employer’s prerogative to make decisions, it asserts that there is a need for a deeper legal underpinning, and more active obligations, to shift the concept away from the conflictual paradigm of consultation being ‘triggered’ towards a more collaborative and productive approach.
The hundred-year-old common law rule that police officers are not employees has reared its head a... more The hundred-year-old common law rule that police officers are not employees has reared its head again as Victorian police officer Justin Boyer claims compensation for severe injuries he claims he met within his duties. I n the matter currently before the Victorian Supreme Court, the Crown and Victoria Police are arguing that because police officers are not employees at common law, there can be no duty of care owed to the claimant, and thus no compensation is owed. The leading decis ion on the relationship between the Crown and members of the Police Force is A-G (NSW) v Perpetual Trustee Co Ltd, a 1955 decision, in which the Crown, in fact failed in arguing that police officers are employees.
The New South Wales Court of Appeal recently considered what obligations employers have when send... more The New South Wales Court of Appeal recently considered what obligations employers have when sending employees to face psychologically traumatic incidents on a day-to-day basis. New South Wales v Briggs1 concerned a police officer who developed Post Traumatic Stress Disorder (PTSD) and was discharged from service. Leeming JA (McColl and Ward JJA agreeing) affirmed that a court must have regard to what general instruction or system of work should have been in place to protect employees working in a traumatic environment. Unsatisfied that such a system was identified, the Court overturned the District Court decision2 that the NSW Police Service was liable in negligence for psychological injuries that the claimant officer sustained in the course of his duties. Briggs is significant in defining the scope of the duty of care the Crown owes public sector employees under statute and at common law. It also offers some insight into how the Court of Appeal sees the position of police officers at common law and raises questions about the role of a right to privacy in the modern workplace.
On 3 December 2021, the Full Bench of the Fair Work Commission (Justice Ross, Vice President Cata... more On 3 December 2021, the Full Bench of the Fair Work Commission (Justice Ross, Vice President Catanzariti, Deputy President Saunders, Commissioner O’Neill and Commissioner Matheson) handed down its decision in CFMMEU v Mt Arthur Coal Pty Ltd.1 The decision concerned a COVID-19 vaccine mandate imposed by Mt Arthur Coal Pty Ltd (Mt Arthur). The mandate gave employees a month to obtain a first COVID-19 vaccine, in which time the Construction, Forestry, Maritime Mining and Energy Union (CFMMEU) brought a challenge to the direction. They were successful, with the Commission ultimately striking down the direction, but only on very narrow grounds relating to a failure to consult. The decision – the first regarding an employer COVID-19 mandate not supported by a public health order – offers insights from a five-member bench about the views of the Commission on vaccine mandates issued by employers, helped by the narrow set of issues in dispute. Neither side contested the science on COVID-19. Nor was there any suggestion that the direction was lawful (or unlawful) on the basis of government health orders, contract or the relevant enterprise agreement. Instead, the only question was whether or not the employer’s vaccine mandate was a ‘lawful and reasonable’ direction. Ultimately that question turned on whether in introducing the mandate the employer had met its consultation obligations under workplace health and safety laws.2 However, beyond addressing important questions about the content of those obligations, the decision reaffirms a number of general propositions relating to the application and scope of the implied duty. It ultimately also provides useful guidance for employers and employees regarding the legalities of mandatory workplace vaccination policies specifically.
This article proposes an alternative model for the regulation of police collective bargaining dis... more This article proposes an alternative model for the regulation of police collective bargaining disputes under the Fair Work Act 2009 (Cth). Its central recommendation is that a North American-style mandatory interest arbitration model should be applied to police officers and other emergency services employees operating under the Fair Work Act 2009 or analogous marketbased bargaining regimes. Specifically, a mediation-arbitration model of interest arbitration-combined with "active" mediation and a tripartite arbitration panel design-is proposed, together with a number of related measures aimed at encouraging bargaining, such as, negotiation timelines. It is argued that as well as providing a guaranteed closure mechanism for police collective bargaining disputes, the proposed model would give neutrals a better understanding of the underlying needs of the parties in a law-enforcement context; and simultaneously encourage negotiated or at least mediated outcomes for police officers. Australian jurisdictions, either via further referrals of State powers or (as now seems more likely) the enactment of parallel State legislation: see Giuseppe Carabetta, "Fair Work and the Future of Police Industrial Regulation in Australia" (2011) 24(3)
The essential duties that police officers perform, and the absence of a right to strike, creates ... more The essential duties that police officers perform, and the absence of a right to strike, creates the need for an effective, impartial procedure for the resolution of bargaining disputes. This article argues that, with the shift of focus under the Fair Work Act 2009 (Cth) to good-faith bargaining, police officers have been left without an effective dispute resolution mechanism, partly because of the limitations on arbitration but also because of uncertainties surrounding the scope of the 'protected action' provisions of the Act for police officers. Following a review of police pay-setting arrangements in comparable jurisdictions, this article examines and proposes options for an alternative model, including a mandatory 'finaloffer' arbitration ('FOA') model as used for police bargaining in Canada, New Zealand and the United States. Research shows that-aside from providing an effective closure mechanism for bargaining disputes where strikes or lock-outs are unavailable-mandatory FOA offers a range of benefits to police bargaining, and could provide an ideal 'fit' for the current bargaining-centred system. The article's findings are of significance not only to police officers, but to all emergency services workers covered by the Fair Work bargaining regime.
Ontario and British Columbia, Canada, have not seen a police or fire workers strike in living mem... more Ontario and British Columbia, Canada, have not seen a police or fire workers strike in living memory. The reason for this is the mandatory interest arbitration model adopted in the two provinces, which sees disputes that cannot be resolved by mutual bargaining referred to a panel of arbitrators who assess submissions in light of statutory criteria. Police officers, and the unions who represent them, have utilised this model to increase pay and improve working conditions often, employers say, without regard to ‘ability to pay’. This paper assesses that claim against the results the model produces and how insiders understand the system as operating. Its conclusion is that interest arbitration has produced good results, especially for police and emergency workers and the community they serve, but the means of getting there have soured relations and may need reform to remain sustainable into the future.
Labour standards adopted under the auspices of the ILO constitute the principal international inf... more Labour standards adopted under the auspices of the ILO constitute the principal international influences on public sector collective bargaining; it is those standards that are the subject of this article. Focusing on the position of essential public sector employees, ILO principles concerning collective bargaining, dispute settlement and the right of workers to withdraw their services as part of bargaining are examined. Particular attention is devoted to the application of ILO standards to essential public sector employees and police officers; and the extent to which Australian law complies with these standards. The ILO supervisory bodies have acknowledged that restrictions on the general right of workers to collectively bargain and to strike can be justified in the case of essential public employees, but only on a minimal or proportional analysis. The ILO has also emphasised that any restrictions on the right to strike must be compensated by adequate, impartial and speedy conciliation and arbitration processes. It is shown, however, that with respect to essential public employees and police officers operating under the Fair Work Act 2009 (Cth), Australian law falls short on both of these scores, with a resultant uncertainty regarding the right of these workers to bargain collectively.
This article examines the origins of this rule, and argues that it is without proper foundation a... more This article examines the origins of this rule, and argues that it is without proper foundation and also lacks modern support. The implications of the rule, particularly from the perspective of state-appointed police officers in Australia, are also discussed. The rule is presented as being not only inequitable, but also incompatible with state police officers' current (statutory) employment rights, including their rights under federal industrial laws. It is argued, however, that the current common law position ought to be reexamined not through further legislative reform, but through judicial intervention.]
This article examines the operation and likely impact of the Fair Work Act 2009 (Cth) (FW Act) fo... more This article examines the operation and likely impact of the Fair Work Act 2009 (Cth) (FW Act) for police. It highlights the tensions between the uniqueness and essentiality of police service and the generalised provisions of the FW Act, and calls for closer attention to be paid to developing alternative dispute resolution arrangements for police. The article also advocates for closer attention to be paid to the approach to the exclusion of matters from the FW Act for police, to minimise current uncertainties and gaps in the regulatory framework, and to achieve a more coherent framework for the regulation of police industrial relations matters. The article also addresses the prospect of a federally-based industrial model for state police. It argues that, based on the Victorian experience, if a similar approach were applied in other state jurisdictions this would be problematic for the regulation of police industrial relations in state police services.
Australian public sector employees are largely governed by generalised labour law statutes. This ... more Australian public sector employees are largely governed by generalised labour law statutes. This article examines how alternative dispute resolution mechanisms available under those laws impact the unique bargaining context of public sector employees, particularly in the emergency services sector. In order to draw conclusions on the most appropriate models for emergency services employees, the article reviews the subsets of conciliation, mediation and arbitration mechanisms employed in Australia and similar jurisdictions overseas, with reference to the standards set by the International Labour Organization. This examination provides a backdrop which can inform not only how lawmakers should design dispute resolution mechanisms but also how bargaining parties should approach voluntary and compulsory mechanisms in the public sector.
Australian courts have in more recent times questioned the need for the continued existence of th... more Australian courts have in more recent times questioned the need for the continued existence of the Crown’s common law or prerogative right to dismiss its servants ‘at pleasure’, for any reason or no reason without any right to be heard, and without prior notice before dismissal.1 The doctrine has been described as ‘exceptional, perhaps anachronistic’2 and ‘doctrinally erroneous . . . the cause of blatant injustice’.3 It has been severely criticised by academic commentators who argue that there can be no real justification for the rule.4 Recently, in a decision which will have major implications for a range of public sector employees, the High Court has signaled that there may now be little room left for this principle in Australia.5 The statutory provisions relevant to Jarratt stemmed from a wave of 1980s reforms aimed at bringing public sector management practices more into line with the private sector. These arrangements are said to promote flexibility and mobility within the public sector, in part by making it easier to transfer and remove executive officers.6 Mr Jarratt’s removal was effected by the Governor, acting under s 51(1) of the Police Service Act 1990 (NSW) (now the Police Act 1990) (the Act). The removal power under s 51(1) required that the removal by the Governor be on the recommendation of the Commissioner, who in turn required the approval of the Minister. Section 51(1) did not, in terms, require procedural fairness to be accorded to an executive officer. It simply stated that an executive officer could be removed from office ‘at any time’. It was widely believed, prior to the High Court’s decision in Jarratt that s 51(1) embodied the dismissal at pleasure principle, including a right to terminate in denial of natural justice.7 In Jarratt, however, the High Court held that the dismissal at pleasure notion was abrogated or displaced by the Act and that the Act had not excluded a right to procedural fairness. Further, in taking this approach, the court applied the presumption from Annetts v McCann,8 to the effect that (except where Parliament makes its contrary intention plain) statutory powers which can prejudice an individual’s rights or interests must be exercised in accordance with the rules of natural justice. This apparent shift in attitude is of particular significance in view of the tendency of the courts to construe statutes as not excluding the Crown’s right to dismiss its servants at pleasure. Indeed, a common theme in many of the earlier Australian decisions was that although statute was not required to bring the general rule into operation, on the other hand, clear statutory provisions were required to exclude the rule. The mere fact that in a particular case some aspects of the appointment were regulated by statute, or that a statutory dismissal power or procedure was applied, was not sufficient to qualify the rule in any way.
At common law, Crown servants hold office at the pleasure of the Crown.1 This extreme common law... more At common law, Crown servants hold office at the pleasure of the Crown.1 This extreme common law (or prerogative) right in the Crown exists unless, in a particular case, it is excluded by statute. Where it does exist and it is actually exercised, it enables the Crown to terminate the services of an officeholder or employee at will, without notice and for any reason or for no reason.2 It also enables the Crown to terminate the services of Crown servants without any requirement to observe the principles of natural justice.3 Most modern Australian public sector statutes abrogate or at least qualify the Crown’s absolute right to dismiss by providing elaborate safeguards against dismissal or by expressly excluding the common law rule. Many public sector employees nowadays also have access to general industrial law dismissal remedies including a right to lodge a claim for unfair dismissal. In a general sense, therefore, public servants enjoy security of tenure. Furthermore, even where the Crown’s prerogative right to dismiss has been expressly preserved by statute, it has very rarely been used; or, if it has, then only in cases where no other provision was available or where no other solution seemed possible.4 These factors do not, however, mean that dismissal at pleasure is an entirely irrelevant concept. In the highly controversial decision of Commissioner of Police for NSW v Jarratt,5 the Crown’s absolute right to dismiss was held to apply to a member of the New South Wales Police Senior Executive Service. This meant the officer concerned was not entitled to procedural fairness in respect of his removal from office, either by way of warning that his removal was under consideration, or by giving him an opportunity to be heard. The legislative provisions relevant to Jarratt were part of a wave of 1980s public sector reforms aimed at bringing public sector management practices more into line with private sector practices. A distinctive feature of these arrangements, as confirmed by Jarratt itself, is that they do not offer senior executive employees the usual range of protective measures. The Jarratt decision is also of interest, however, because of what is says about the question of whether, or in what circumstances, the dismissal at pleasure doctrine might be ousted by legislation. This is an issue that could potentially affect a broad range of public sector employees.6 Jarratt is also significant because of what it tells us about the relationship between the dismissal at pleasure doctrine and the obligation of procedural fairness. Specifically, one of the key issues before the court in Jarratt, and in the first instance proceedings before Simpson J, concerned the apparent conflict between these two concepts in the context of decisions which affect the rights or interests of particular individuals. This note will consider the treatment of these issues by Simpson J in her decision at first instance in Jarratt v Commissioner of Police for NSW,7 discuss the Court of Appeal’s approach to these and other related matters in its decision in Jarratt, and conclude with an analysis of some of the implications of these two decisions and the future directions of the law in this area.
Public Sector Wages ‘Cap’: The New Framework for the Determination of Public Sector Wages and Conditions in New South Wales, 2012
The Industrial Relations Amendment (Public Sector Conditions of Employment) Act 2011 NSW (the Ame... more The Industrial Relations Amendment (Public Sector Conditions of Employment) Act 2011 NSW (the Amendment Act) was assented to and commenced on 17 June 2011. In an unusual and highly controversial move that some have labelled ‘worse than Work Choices’,1 the new Act amends the Industrial Relations Act 1996 (NSW) (IR Act) to require the Industrial Relations Commission of New South Wales (the commission), when dealing with public sector wages claims, to give effect to certain aspects of government policy on conditions of employment of public sector workers. Any award or order of the commission that is inconsistent with the government’s declared policy has no legal force. The current policy2 is given effect via the Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 (NSW) (the Regulation). The Regulation applies to a wide range of public sector employees, including state teachers, health workers, transport workers, prison officers and other Crown employees.3 At the heart of the policy — aimed at reducing the state’s ‘wages bill’ — is a requirement that any increases to employee-related expenses above a 2.5% per annum ‘cap’, including wages and conditions of employment, must be offset by employee-related cost savings.4 In this note, I will outline the background and purpose behind the legislative and regulatory changes, highlight the key elements of the new legislative framework and the associated Regulation and wages policy, and reflect on some of the implications of the new initiatives for public sector pay disputes. In the course of the discussion I will also consider developments from three recent decisions where there has been some consideration of the operation and effect of the new scheme.
Arbitration has become the chosen method of resolving disputes over wages and conditions for poli... more Arbitration has become the chosen method of resolving disputes over wages and conditions for police and other emergency workers in Australia, Canada, the United States, Europe, and elsewhere. This is because emergency workers, by virtue of their essential status, cannot necessarily engage in industrial action such as strikes. In the police sector, New Zealand takes a unique approach to resolving such disputes by utilising a blend of mediation and "final-offer arbitration". As this article shows, New Zealand has seen more mutually acceptable negotiated outcomes and ensured the reliable provision of police services under this model. Ultimately though, as explained by interviews with leading practitioners, broader structural and environmental factors may in part explain New Zealand's success, suggesting it may not entirely be repeatable by police forces overseas.
For many employees, the time when there was a physical and temporal distinction between periods a... more For many employees, the time when there was a physical and temporal distinction between periods at work and away is a thing of the past. Instant communications over the internet and by mobile phones, including using social media, mean employers can monitor employees’ time on and off the clock. Courts and tribunals have responded to policies that seek to control employees when they are not at work. Seminally, in Rose v Telstra Corp Ltd (Rose), Ross VP gave three, alternate, criteria to determine if an employees’ conduct outside of work justified dismissal. This article examines the application of those criteria by courts and tribunals. It then critically analyses their operation in three fields where contract and statute particularly blur the line between on- and off-duty conduct – police, public sector workers and elite athletes – concluding that, although employees are generally entitled to treat their personal acts as personal, that protection can disappear in the face of an employer with a particular interest in its own reputation.
The essential duties that police officers perform, and the absence of a right to strike, creates ... more The essential duties that police officers perform, and the absence of a right to strike, creates the need for an effective, impartial procedure for the resolution of bargaining disputes. This article argues that, with the shift of focus under the Fair Work Act 2009 (Cth) to good-faith bargaining, police officers have been left without an effective dispute resolution mechanism, partly because of the limitations on arbitration but also because of uncertainties surrounding the scope of the ‘protected action’ provisions of the Act for police officers. Following a review of police pay-setting arrangements in comparable jurisdictions, this article examines and proposes options for an alternative model, including a mandatory ‘final-offer’ arbitration (‘FOA’) model as used for police bargaining in Canada, New Zealand and the United States. Research shows that — aside from providing an effective closure mechanism for bargaining disputes where strikes or lock-outs are unavailable — mandatory ...
Labour standards adopted under the auspices of the ILO constitute the principal international inf... more Labour standards adopted under the auspices of the ILO constitute the principal international influences on public sector collective bargaining; it is those standards that are the subject of this article. Focusing on the position of essential public sector employees, ILO principles concerning collective bargaining, dispute settlement and the right of workers to withdraw their services as part of bargaining are examined. Particular attention is devoted to the application of ILO standards to essential public sector employees and police officers; and the extent to which Australian law complies with these standards. The ILO supervisory bodies have acknowledged that restrictions on the general right of workers to collectively bargain and to strike can be justified in the case of essential public employees, but only on a minimal or proportional analysis. The ILO has also emphasised that any restrictions on the right to strike must be compensated by adequate, impartial and speedy conciliat...
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Papers by Giuseppe Carabetta
The decision concerned a COVID-19 vaccine mandate imposed by Mt Arthur Coal Pty Ltd (Mt Arthur). The mandate gave employees a month to obtain a first COVID-19 vaccine, in which time the Construction, Forestry, Maritime Mining and Energy Union (CFMMEU) brought a challenge to the direction. They were successful, with the Commission ultimately striking down the direction, but only on very narrow grounds relating to a failure to consult.
The decision – the first regarding an employer COVID-19 mandate not supported by a public health order – offers insights from a five-member bench about the views of the Commission on vaccine mandates issued by employers, helped by the narrow set of issues in dispute. Neither side contested the science on COVID-19. Nor was there any suggestion that the direction was lawful (or unlawful) on the basis of government health orders, contract or the relevant enterprise agreement. Instead, the only question was whether or not the employer’s vaccine mandate was a ‘lawful and reasonable’ direction. Ultimately that question turned on whether in introducing the mandate the employer had met its consultation obligations under workplace health and safety laws.2 However, beyond addressing important questions about the content of those obligations, the decision reaffirms a number of general propositions relating to the application and scope of the implied duty. It ultimately also provides useful guidance for employers and employees regarding the legalities of mandatory workplace vaccination policies specifically.
The statutory provisions relevant to Jarratt stemmed from a wave of 1980s reforms aimed at bringing public sector management practices more into line with the private sector. These arrangements are said to promote flexibility and mobility within the public sector, in part by making it easier to transfer and remove executive officers.6 Mr Jarratt’s removal was effected by the Governor, acting under s 51(1) of the Police Service Act 1990 (NSW) (now the Police Act 1990) (the Act). The removal power under s 51(1) required that the removal by the Governor be on the recommendation of the Commissioner, who in turn required the approval of the Minister. Section 51(1) did not, in terms, require procedural fairness to be accorded to an executive officer. It
simply stated that an executive officer could be removed from office ‘at any time’.
It was widely believed, prior to the High Court’s decision in Jarratt that s 51(1) embodied the dismissal at pleasure principle, including a right to terminate in denial of natural justice.7 In Jarratt, however, the High Court held that the dismissal at pleasure notion was abrogated or displaced by the Act and that the Act had not excluded a right to procedural fairness. Further, in taking this approach, the court applied the presumption from Annetts v McCann,8 to the effect that (except where Parliament makes its contrary intention plain) statutory powers which can prejudice an individual’s rights or interests must be exercised in accordance with the rules of natural justice.
This apparent shift in attitude is of particular significance in view of the tendency of the courts to construe statutes as not excluding the Crown’s right to dismiss its servants at pleasure. Indeed, a common theme in many of the earlier Australian decisions was that although statute was not required to bring the general rule into operation, on the other hand, clear statutory provisions were required to exclude the rule. The mere fact that in a particular case some aspects of the appointment were regulated by statute, or that a statutory dismissal power or procedure was applied, was not sufficient to qualify the rule in any way.
Most modern Australian public sector statutes abrogate or at least qualify the Crown’s absolute right to dismiss by providing elaborate safeguards against dismissal or by expressly excluding the common law rule. Many public sector employees nowadays also have access to general industrial law dismissal remedies including a right to lodge a claim for unfair dismissal. In a general sense, therefore, public servants enjoy security of tenure. Furthermore, even where the Crown’s prerogative right to dismiss has been expressly preserved by statute, it has very rarely been used; or, if it has, then only in cases where no other provision was available or where no other solution seemed possible.4
These factors do not, however, mean that dismissal at pleasure is an entirely irrelevant concept. In the highly controversial decision of Commissioner of Police for NSW v Jarratt,5 the Crown’s absolute right to dismiss was held to apply to a member of the New South Wales Police Senior Executive Service. This meant the officer concerned was not entitled to procedural fairness in respect of his removal from office, either by way of warning that his removal was under consideration, or by giving him an opportunity to be heard.
The legislative provisions relevant to Jarratt were part of a wave of 1980s public sector reforms aimed at bringing public sector management practices more into line with private sector practices. A distinctive feature of these arrangements, as confirmed by Jarratt itself, is that they do not offer senior executive employees the usual range of protective measures. The Jarratt decision is also of interest, however, because of what is says about the question of whether, or in what circumstances, the dismissal at pleasure doctrine might be ousted by legislation. This is an issue that could potentially affect a broad range of public sector employees.6 Jarratt is also significant because of what it tells us about the relationship between the dismissal at pleasure doctrine and the obligation of procedural fairness. Specifically, one of the key issues before the court in Jarratt, and in the first instance proceedings before Simpson J, concerned the apparent conflict between these two concepts in the context of decisions which affect the rights or interests of particular individuals.
This note will consider the treatment of these issues by Simpson J in her decision at first instance in Jarratt v Commissioner of Police for NSW,7 discuss the Court of Appeal’s approach to these and other related matters in its decision in Jarratt, and conclude with an analysis of some of the implications of these two decisions and the future directions of the law in this area.
In this note, I will outline the background and purpose behind the legislative and regulatory changes, highlight the key elements of the new legislative framework and the associated Regulation and wages policy, and reflect on some of the implications of the new initiatives for public sector pay disputes. In the course of the discussion I will also consider developments from three recent decisions where there has been some consideration of the operation and effect of the new scheme.
The decision concerned a COVID-19 vaccine mandate imposed by Mt Arthur Coal Pty Ltd (Mt Arthur). The mandate gave employees a month to obtain a first COVID-19 vaccine, in which time the Construction, Forestry, Maritime Mining and Energy Union (CFMMEU) brought a challenge to the direction. They were successful, with the Commission ultimately striking down the direction, but only on very narrow grounds relating to a failure to consult.
The decision – the first regarding an employer COVID-19 mandate not supported by a public health order – offers insights from a five-member bench about the views of the Commission on vaccine mandates issued by employers, helped by the narrow set of issues in dispute. Neither side contested the science on COVID-19. Nor was there any suggestion that the direction was lawful (or unlawful) on the basis of government health orders, contract or the relevant enterprise agreement. Instead, the only question was whether or not the employer’s vaccine mandate was a ‘lawful and reasonable’ direction. Ultimately that question turned on whether in introducing the mandate the employer had met its consultation obligations under workplace health and safety laws.2 However, beyond addressing important questions about the content of those obligations, the decision reaffirms a number of general propositions relating to the application and scope of the implied duty. It ultimately also provides useful guidance for employers and employees regarding the legalities of mandatory workplace vaccination policies specifically.
The statutory provisions relevant to Jarratt stemmed from a wave of 1980s reforms aimed at bringing public sector management practices more into line with the private sector. These arrangements are said to promote flexibility and mobility within the public sector, in part by making it easier to transfer and remove executive officers.6 Mr Jarratt’s removal was effected by the Governor, acting under s 51(1) of the Police Service Act 1990 (NSW) (now the Police Act 1990) (the Act). The removal power under s 51(1) required that the removal by the Governor be on the recommendation of the Commissioner, who in turn required the approval of the Minister. Section 51(1) did not, in terms, require procedural fairness to be accorded to an executive officer. It
simply stated that an executive officer could be removed from office ‘at any time’.
It was widely believed, prior to the High Court’s decision in Jarratt that s 51(1) embodied the dismissal at pleasure principle, including a right to terminate in denial of natural justice.7 In Jarratt, however, the High Court held that the dismissal at pleasure notion was abrogated or displaced by the Act and that the Act had not excluded a right to procedural fairness. Further, in taking this approach, the court applied the presumption from Annetts v McCann,8 to the effect that (except where Parliament makes its contrary intention plain) statutory powers which can prejudice an individual’s rights or interests must be exercised in accordance with the rules of natural justice.
This apparent shift in attitude is of particular significance in view of the tendency of the courts to construe statutes as not excluding the Crown’s right to dismiss its servants at pleasure. Indeed, a common theme in many of the earlier Australian decisions was that although statute was not required to bring the general rule into operation, on the other hand, clear statutory provisions were required to exclude the rule. The mere fact that in a particular case some aspects of the appointment were regulated by statute, or that a statutory dismissal power or procedure was applied, was not sufficient to qualify the rule in any way.
Most modern Australian public sector statutes abrogate or at least qualify the Crown’s absolute right to dismiss by providing elaborate safeguards against dismissal or by expressly excluding the common law rule. Many public sector employees nowadays also have access to general industrial law dismissal remedies including a right to lodge a claim for unfair dismissal. In a general sense, therefore, public servants enjoy security of tenure. Furthermore, even where the Crown’s prerogative right to dismiss has been expressly preserved by statute, it has very rarely been used; or, if it has, then only in cases where no other provision was available or where no other solution seemed possible.4
These factors do not, however, mean that dismissal at pleasure is an entirely irrelevant concept. In the highly controversial decision of Commissioner of Police for NSW v Jarratt,5 the Crown’s absolute right to dismiss was held to apply to a member of the New South Wales Police Senior Executive Service. This meant the officer concerned was not entitled to procedural fairness in respect of his removal from office, either by way of warning that his removal was under consideration, or by giving him an opportunity to be heard.
The legislative provisions relevant to Jarratt were part of a wave of 1980s public sector reforms aimed at bringing public sector management practices more into line with private sector practices. A distinctive feature of these arrangements, as confirmed by Jarratt itself, is that they do not offer senior executive employees the usual range of protective measures. The Jarratt decision is also of interest, however, because of what is says about the question of whether, or in what circumstances, the dismissal at pleasure doctrine might be ousted by legislation. This is an issue that could potentially affect a broad range of public sector employees.6 Jarratt is also significant because of what it tells us about the relationship between the dismissal at pleasure doctrine and the obligation of procedural fairness. Specifically, one of the key issues before the court in Jarratt, and in the first instance proceedings before Simpson J, concerned the apparent conflict between these two concepts in the context of decisions which affect the rights or interests of particular individuals.
This note will consider the treatment of these issues by Simpson J in her decision at first instance in Jarratt v Commissioner of Police for NSW,7 discuss the Court of Appeal’s approach to these and other related matters in its decision in Jarratt, and conclude with an analysis of some of the implications of these two decisions and the future directions of the law in this area.
In this note, I will outline the background and purpose behind the legislative and regulatory changes, highlight the key elements of the new legislative framework and the associated Regulation and wages policy, and reflect on some of the implications of the new initiatives for public sector pay disputes. In the course of the discussion I will also consider developments from three recent decisions where there has been some consideration of the operation and effect of the new scheme.