WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2015 WAIRC 00515 CORAM :Commissioner S J Kenner HEARD : Thursday, 26 March 2015, Friday, 17 April 2015; Written submissions Friday, 10 April 2015; Monday, 13 April 2015; Tuesday, 21 April 2015; Monday, 4 May 2015 DELIVERED : Wednesday, 15 July 2015 FILE NO. : B 30 OF 2015 BETWEEN : Peter Milford Weston Applicant AND Commissioner of Police, Western Australia Respondent Catchwords : Industrial law (WA) – Contractual benefits claim – Whether the Commission has jurisdiction – Whether a Police Officer is an “employee” for the purposes of s 7 of the Industrial Relations Act 1979 (WA) – Whether a Police Officer is an “employee” at common law – Principles applied – Police Officers are not employees at common law or for the purposes of s 7 of the Act – Application dismissed for want of jurisdiction – Order made Legislation : Industrial Relations Act 1979 (WA) ss 7, 83(1) Industrial Relations Act 1988 (Cth) Div 3, Pt VIA Limitation Act 2005 (WA) Police Act 1892 (WA) ss 8, 23 Result : Application dismissed Representation: Applicant : Mr P Mullally as agent Respondent : Ms J Rhodes of counsel Solicitors: Respondent : State Solicitor’s Office Case(s) referred to in reasons: Attorney-General for New South Wales v Perpetual Trustee Company (Limited) (1955) 92 CLR 113 Attorney-General for New South Wales v The Perpetual Trustee Company (Limited) (1952) 85 CLR 237 Enever v The King (1906) 3 CLR 969 Finnerty v Commissioner of Police (2005) 85 WAIG 1545 Konrad v Victoria (1999) 91 FCR 95 Menner v Commissioner of Police (1997) 74 IR 472 The Honourable Minister of Police v Western Australian Police Union of Workers (2001) 81 WAIG 356 Weston v Commissioner of Police (2015) 95 WAIG 133 === REASONS FOR DECISION === ¶1 The applicant, Mr Weston, was a Police Officer with the Western Australian Police between April 1978 and May 2006. Mr Weston brings the present claim for denied contractual benefits by way of six months’ salary for the period 15 December 2005 to 30 May 2006. Mr Weston previously commenced a claim in the Industrial Magistrates Court alleging a breach by the respondent of the terms of the Western Australian Police Service Enterprise Agreement for Police Act Employees 2003 but that claim was dismissed on the basis that it was lodged out of time: Weston v Commissioner of Police (2015) 95 WAIG 133. ¶2 The Commissioner of Police resists Mr Weston’s claim principally on the basis that as a Police Officer at the material time, he was not an employee at common law or for the purposes of s 7 of the Industrial Relations Act 1979. Reliance was principally placed by the Commissioner of Police in this respect, on the decision of the Full Bench of the Commission in The Honourable Minister of Police v Western Australian Police Union of Workers (2001) 81 WAIG 356. Furthermore, the Commissioner of Police contended that being bound by the Agreement, at the material time, means the claim falls within the sole jurisdiction of the Industrial Magistrates Court under s 83(1) of the Act. Finally, even if Mr Weston is held to be an employee for the purposes of the Act, and s 83(1) provides no barrier to his claim, the Commissioner of Police further contended that Mr Weston’s claim is statute barred by the terms of the Limitation Act 2005, it being a claim outside of the six year limitation period. Jurisdiction ¶3 As the question of jurisdiction is agitated, that matter must first be determined by the Commission. ¶4 As noted, the Commissioner of Police placed heavy reliance on the decision of the Full Bench in The Hon Minister of Police. In that matter, an appeal was brought from a decision of the Commission at first instance in relation to a dispute between the appellant and the respondent concerning disciplinary proceedings and the removal of a Police Officer under ss 8 and 23 of the Police Act 1892. A ground of the appeal was that the matter before the Commission was beyond jurisdiction, because a Police Officer was not, as a matter of law, an employee for the purposes of the Act. In the decision, Sharkey P held that as to the jurisdictional ground, a Police Officer was not, at common law and for the purposes of s 7 of the Act, an employee. It was held that Police Officers are statutory office holders who hold a public office as a member of a force in the regular service of the Crown: Enever v The King (1906) 3 CLR 969; Attorney-General for New South Wales v Perpetual Trustee Company (Limited) (1955) 92 CLR 113; Attorney-General for New South Wales v The Perpetual Trustee Company (Limited) (1952) 85 CLR 237. On this ground of appeal, the other members of the Full Bench, Fielding SC and Scott C, did not find it necessary to finally decide the issue of whether a Police Officer was an employee at common law, having concluded that the appeal should be upheld on other grounds. However, Fielding SC observed that whilst there was considerable decided authority that Police Officers are not employees, at least for the purposes of the common law, a number of decisions have held that Police Officers may be so regarded for the purposes of industrial relations legislation, such as Konrad v Victoria (1999) 91 FCR 95. ¶5 Furthermore, Fielding SC, at 368, referred to the judgement of Anderson J in Menner v Commissioner of Police (1997) 74 IR 472 “to the effect that the relationship between the Crown and a member of the Police Force ‘is that of servant to master notwithstanding that the constable has specific powers and duties which he must execute as a matter of independent responsibility. [Attorney-General for New South Wales v The Perpetual Trustee Company (Limited) (1952) 85 CLR 237 at 248-249, 252]’ suggest that members of the Police Force in this State might properly be taken as employees for the purposes of the Industrial Relations Act 1979”. In her decision, Scott C also did not find it necessary to finally decide the issue, but tended to the view taken by Sharkey P, that the common law approach should be adopted, but that “this matter requires further consideration”: 368. ¶6 I therefore agree with the submissions of Mr Weston, that, contrary to for example, the decision of Smith C in Finnerty v Commissioner of Police (2005) 85 WAIG 1545 at par 32, where Smith C said that “the Full Bench held [in The Hon Minister of Police] that Police Officers are not employees for the purposes of the Act”, that is not so. Sharkey P certainly did, however, the other members of the Full Bench, were somewhat equivocal on the issue. It is correct to say that very shortly after the decision of the Full Bench in The Hon Minister of Police Schedule 3 was inserted into the Act, to at least in part, deem Police Officers to be employees, as Government Officers, within the meaning of s 80C of the Act. However, Schedule 3 has the effect of bringing Police Officers within the jurisdiction of the Public Service Arbitrator, not within the jurisdiction of the Commission generally. There are also express exclusions from jurisdiction contained in Schedule 3. Thus, whilst I consider that there is some force in the submissions made by Mr Weston in this matter, the uncertainty surrounding the effect of the decision of the Full Bench in The Hon Minister of Police has now largely been overcome. ¶7 During the course of the proceedings, I brought to the attention of the parties the decision of Anderson J in Menner. Both parties were given the opportunity of making further written submissions in connection with the case, which they did. The Commissioner of Police submitted that the question of whether Police Officers are employees for the purposes of s 7 of the Act was not a matter which was squarely raised in Menner. There was no detailed consideration of relevant authority by Anderson J, as did Sharkey P in The Hon Minister of Police. Furthermore, whilst reference was made to the proposition of Police Officers being engaged in a “dual capacity” as both office holders at common law and as an employee for the purposes of the Act, it was contended that decisions to this effect, were made under relevant Commonwealth legislation, with a wider definition of “employee” than that which exists under the Act. ¶8 For Mr Weston, it was submitted that Menner supports the applicant’s contentions that a Police Officer can be both an employee as well as an office holder, exercising specific powers independently of their employer. ¶9 Whilst in this case there was some evidence led through Mr Weston as to his duties and responsibilities as a Police Officer, that evidence does not, in my view, materially affect the state of the authorities to which I have referred. At all material times Mr Weston, as a Police Officer, was appointed under and was subject to the relevant provisions of the Police Act. Whilst it is correct to say, as I have noted above, that the decision of the Full Bench in The Hon Minister of Police, was not a unanimous decision on the jurisdictional ground as to whether Police Officers are employees for the purposes of the Act, Sharkey P did consider in some depth, the relevant common law authorities. Some qualified support was given to Sharkey P’s conclusions by the other members of the Full Bench, without finally deciding the matter. ¶10 Mr Weston placed some reliance on federal authorities and the application of international conventions. A leading case is Konrad. However, the decision of the Federal Court in Konrad, as was acknowledged by Mr Weston, is distinguishable from the present. In Konrad, the issue was whether Victorian Police Officers were employees and amenable to the federal unfair dismissal jurisdiction for the purposes of Div 3 of Part VIA of the then Industrial Relations Act 1988 (Cth). The Full Court (Ryan, North and Finkelstein JJ) overturned the primary judge, who held that as Police Officers were not employees at common law, they were not covered by the federal unfair dismissal legislation. The Full Court concluded that the question was not whether Police Officers were employees at common law, but whether they were employees for the purposes of Div 3 of Part VIA of the legislation. Significant for these purposes, was that the legislation gave effect to relevant International Labour Organisation Conventions and Recommendations, substantially widening the scope of coverage beyond traditional common law definitions of employment. Such considerations have no application to the definition of “employee” under s 7 of the Act. Conclusion ¶11 Having regard to all of these matters and despite the obiter observations of Anderson J in Menner, I consider that it is preferable to adopt the approach taken by Sharkey P in The Hon Minister of Police, to the effect that Police Officers are not employees either at common law, or for the purposes of s 7 of the Act. ¶12 The application must be dismissed for want of jurisdiction and I so order.