Nathan Vale, Karoly Arpad Ban v Northern Territory Police, Fire and Emergency Services
[2023] FWCFB 41
•23 FEBRUARY 2023
| [2023] FWCFB 41 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Nathan Vale, Karoly Arpad Ban
v
Northern Territory Police, Fire and Emergency Services
(C2022/5959)
| VICE PRESIDENT CATANZARITI | SYDNEY, 23 FEBRUARY 2023 |
Appeal against decision [2022] FWC 2101 of Deputy President Saunders at Newcastle on 8 August 2022 in matter number U2022/1031, U2022/172 – permission to appeal granted – appeal dismissed.
Background
Mr Nathan Vale and Mr Karoly Arpad Ban (the Appellants) have lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (Cth) (the Act), for which permission to appeal is required, against a decision[1] (the Decision) of Deputy President Saunders issued on 8 August 2022. The Decision concerned applications brought by the Appellants for an unfair dismissal remedy against the Northern Territory Police, Fire and Emergency Services (the Respondent) pursuant to s.394 of the Act.
The Appellants are former members of the Northern Territory Police Force (NTPF) and each Appellant was retired from the NTPF by the Northern Territory Commissioner of Police (Police Commissioner) pursuant to s.89(d) of the Police Administration Act 1978 (NT) (Police Act). The retirements arose in circumstances where the Appellants had failed to comply with COVID-19 vaccination requirements in accordance with directions made by the Northern Territory Chief Health Officer and as required by the Police Commissioner. At the time of their retirement, Mr Vale and Mr Ban both held the rank of Constable First Class.
At first instance, the Respondent raised a jurisdictional challenge to the Appellants’ unfair dismissal applications contending that the Appellants were not national system employees for the purposes of Part 3-2 of Act and, in any event, s.53 of the Northern Territory (Self Government) Act 1978 (Cth) (Self Government Act) operates to deny the Commission any power in respect to the employment, and termination of employment, of members of the NTPF. The Appellants opposed these contentions and submitted that they were protected from unfair dismissal within the meaning of s.382 of the Act.
After undertaking a detailed statutory analysis, the Deputy President was ultimately satisfied that the Appellants did not have employment relationships with the Respondent, they were not “national system employees” and they were therefore not entitled to the protection of the unfair dismissal provisions in the Act. The Deputy President concluded that the Appellants’ applications must be dismissed.
This matter was listed for permission to appeal and the merits of the appeal. On 5 September 2022, directions were issued for the filing of material and the matter was listed for hearing on 24 November 2022. The Appellants and the Respondent each consented to the appeal being determined on the papers without the need for oral submissions at a formal hearing. Accordingly, pursuant to s.607(1) of the Act, the appeal was conducted on the basis of written submissions only.
For the reasons that follow, permission to appeal is granted and the appeal is dismissed.
Decision under appeal
The Deputy President commenced by considering the Respondent’s contentions concerning the Self Government Act. The Deputy President noted that if the Respondent’s arguments were correct, the result would be that the Commission would have no power in respect of the Appellants’ employment. The Deputy President considered these submissions on the assumption that the Appellants were employed by the Respondent during their time as members of the NTPF.
To make these determinations the Deputy President set out the contemporary purposive approach to statutory interpretation, with reference to the decision of the High Court plurality in SZTAL v Minister for Immigration and Border Protection[2] and s.15AA of the Acts Interpretation Act 1901 (Cth). The Deputy President noted the Self Government Act established the Northern Territory as a self-governing entity and was intended, among other things, to provide for the establishment of separate political, representative and administrative institutions in the Northern Territory. Specifically, in relation to the Commission’s powers, the Deputy President considered the purpose of s 53(3) of the Self Government Act is to prevent (a) the Commission from exercising any powers in relation to matters which are within the jurisdiction of “existing Northern Territory Arbitral tribunals” and (b) the creation of new industrial tribunals with power to hear and determine disputes relating to conditions of employment.
The Deputy President proceeded by considering the following questions:
1. Is the Police Arbitral Tribunal a “tribunal established by an enactment before 1 July 1978” within the meaning of s.53(3) of the Self Government Act?
2. Is an Appeal Board a “tribunal established by an enactment before 1 July 1978” within the meaning of s.53(3) of the Self Government Act?
Is the Police Arbitral Tribunal a “tribunal” pursuant to s.53(3)
The Deputy President observed that for the Police Arbitral Tribunal to be a “tribunal” within in the meaning of s.53(3), two conditions must be satisfied: first, it must be a tribunal which “has power to hear and determine disputes, claims or matters relating to the terms and conditions of the employment”; and second, the tribunal must have been “established by an enactment before 1 July 1978”.
Undertaking a process of statutory interpretation, the Deputy President considered that the Police Arbitral Tribunal was established by an ordinance and has been in continuous existence, albeit under different pieces of legislation, since 1949. Further, considering s.35 of the Police Act, the Deputy President found that the Police Arbitral Tribunal satisfies the first criteria and, in summary, has power to hear and determine disputes relating to the employment of members of the NTPF. The Deputy President also concluded that the second criterion was satisfied as the Police Arbitral Tribunal was established before 1978, and ss.4, 57 and 56 of the Self Government Act evidenced that it was established by enactment. Therefore, the Deputy President was satisfied that the Police Arbitral Tribunal is a “tribunal” within the meaning of s.53(3) of the Self Government Act.
The Deputy President then considered the Respondent’s submission, that it was open to the Commission to find that it has no power to hear and determine the Appellants’ unfair dismissal applications solely on the basis that the Police Arbitral Tribunal is a “tribunal” within the meaning of s.53(3). However, the Deputy President rejected this submission for the reasons set out at [32] of the Decision, noting that the submission put by the Respondent that both the Police Arbitral Tribunal and the Appeal Boards are “tribunals” within the meaning of s.53(3) was more forceful, since this would preclude the Commission from having any power to deal with the Appellants’ unfair dismissal claims.
Is the Appeal Board a “tribunal” pursuant to s.53(3)
The Deputy President noted that the Police Act provides for an Appeal Board to deal with an appeal by a member of the NTPF against various actions, decisions or directions made by the Police Commissioner. In the determination of whether the Appeal Board is a tribunal within the meaning of s 53(3) of the Self Government Act, the Deputy President set out and considered ss.94 and 95 of the Police Act which concern inability and disciplinary appeals and procedural matters. The Deputy President noted that Appeal Boards have been in existence and operation in the Northern Territory since 1961. As to whether Appeal Boards were “established by an enactment” within the meaning of s.53(3) of the Self Government Act, unlike the Police Arbitral Tribunal the Deputy President found that the Appeals Board was not established by enactment. The Deputy President’s reasons for this finding are provided at [34] – [43] of the Decision.
At [44] of the Decision, the Deputy President rejected the Respondent’s contention that the word “enactment” in s.53(3) of the Self Government Act has a wider meaning than the definition of “enactment” in s.4 of the Self Government Act. The Deputy President’s reasons for this conclusion were, in summary, that neither the text nor the purpose of s.53(3) of the Self Government Act reveal a “contrary intention” to give the word “enactment” a wider meaning than the definition contained in s.4 of the Self Government Act; the use of specific language in the Self Government Act suggests that only particular types of tribunals were intended to continue to operate to the exclusion of the Commission; and there are material differences between the Police Arbitral Tribunal and Appeal Boards and these differences are consistent with an intention to exclude the powers of the Commission in relation to matters before an “existing Northern Territory Arbitral tribunal” with similar standing and powers to the Commission, but not to lesser bodies such as Appeal Boards.
Therefore, the Deputy President rejected the Respondent’s wider contention that the Commission does not have power by reason of s.53(3) of the Self Government Act to deal with the Appellants’ unfair dismissal applications. However, for completeness the Deputy President also addressed some of the other arguments raised by the parties in relation to other aspects of s.53(3) of the Self Government Act. We have summarised the Deputy President’s findings in relation to these other contentions below.
Other contentions concerning the Self Government Act s.53(3)
The Appellants’ submitted that if Parliament had intended for a board such as an Appeal Board constituted under the Police Act to be a “tribunal” within the meaning of s.53(3), s.53(3) would, like s.53(5), have expressly included “board” in the wording of the clause. The Deputy President considered this an application of the expressio unius est exclusio alterius rule, which presumes that an express mention in a provision of a particular person, power or thing means that the provision is not intended to include any others and any others are thereby excluded. However, the Deputy President noted that courts have repeatedly called for caution in the application of this rule. Further, the Deputy President considered that s.53(3) and s.53(5) are concerned with different issues and have different purposes, and therefore there are persuasive reasons for these sections being drafted as they are.
The Respondent also pointed to the fact that courts have previously referred to Appeal Boards as “administrative tribunals” or “tribunals” in a diverse range of areas including sport, building, and land and planning. Against this background, the Deputy President considered the operation of the Appeal Board as a defined specialist jurisdiction under the Police Act. The Deputy President described the function of the Appeal Board with reference to the Police Act at [59]-[69] of the Decision. Having regard to these features of an Appeal Board, the Deputy President found that an Appeal Board has quasi-judicial functions under the Police Act and is a “tribunal” within the meaning of s.53(3) of the Self Government Act.
In reaching his conclusion on s.53(3) of the Self Government Act, the Deputy President found:
“[70] The Police Arbitral Tribunal is a “tribunal established by enactment before 1 July 1978” within the meaning of s 53(3) of the Self Government Act. The Appeal Boards are not, because they were not “established by enactment” within the meaning of s 53(3) of the Self Government Act. It follows that the (assumed) employment of the Applicants by the Respondent is not “employment in respect of which a tribunal established by an enactment before 1 July 1978 has power to hear and determine disputes, claims or matters relating to the terms and conditions of the employment”. In the result, the Commission is not precluded by reason of s 53(3) of the Self Government Act from exercising any powers it has in relation to the termination of employment of the Applicants.”
National System Employees and Employers
The Deputy President then turned to consider whether the unfair dismissal regime in Part 3-2 of the Act applied to the Appellants, having regard to the definitions of national system employees and employers in ss.13 and 14 of the Act. The Deputy President concluded that:
“[76] It is clear from sections 13 and 14 of the FW Act that for the Applicants to have been national system employees at the time they were members of the NTPF, they must have been employed, or usually employed, by the Respondent and the Respondent must have been a “national system employer” within the meaning of s 14(1)(f) of the FW Act. Paragraphs 14(1)(a),(b),(c),(d) and (e) of the FW Act are plainly not relevant to the present case.”
Did the NT Police carry on an activity in a Territory in Australia?
The Deputy President was satisfied that the Respondent was, during the Appellants’ service with the NTPF, “a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia” within the meaning of s.14(1)(f) of the Act. The Deputy President found that the activity which the Respondent carried on was operating a police force for the Northern Territory.
Were the Appellants employed or usually employed by the Respondent?
The Deputy President proceeded to consider whether the Appellants were employed or usually employed by the Respondent. To do so, the Deputy President set out the legal principles which establish what constitutes an “employee” at common law. The Deputy President adopted the observations of the Full Court of the Federal Court in Ryan v Commissioner of Police, NSW Police Force,[3] which explained the position as follows:
“In the absence of a statutory provision to the contrary, members of a police force are not employed under a contract of employment, but are independent office-holders exercising original authority in the execution of their duties.”[4]
The Deputy President noted that while there are many cases in which police officers have been held to be employees for the purposes of particular legislation, the outcome of those cases turned on the specific statutory regime under consideration. Further, the Deputy President observed that when construing particular legislation, words such as “employee” and “employment” have more than one ordinary meaning.
The Deputy President also considered that the Police Act distinguishes in various places between a member of the NTPF, and “an employee within the meaning of the Public Sector Employment and Management Act 1993” or a “public sector employee”. The Deputy President considered that these provisions indicate that Parliament intended a distinction of substance between a member of the NTPF and an employee. Another distinction acknowledged by the Deputy President, was that under the Police Act members of the NTPF are “appointed” and hold “office” which is contrasted with an employee at common law, who is a party to an employment relationship. Further, the Deputy President noted that members of the NTPF are required to take an oath before performing any duties.
The Deputy President also considered ss.27, 28, 51 and 20 of the Police Act. The Deputy President found that when these definitions are read in the context of the remaining provisions of the Police Act, and in light of the emphasis throughout the Police Act on members of the NTPF being statutory office-holders, the word “employment” should be construed in its general sense to mean the engagement of a person who is paid for performing work on a regular basis at the request, and at the direction, of another. Further, the Deputy President found that the Police Act does not disclose a legislative intention to abrogate the long-recognised principles of the common law concerning the status and legal standing of police officers as statutory office holders, not employees at common law.
At first instance, the Appellants relied on letters provided to them by the Police Commissioner at the time they commenced with the NTPF to support the fact that they should be considered employees at common law. The Deputy President found that such correspondence did not assist the Appellants as the Police Commissioner did not, on the proper construction of the Police Act, have the power to enter into employment relationships with members of the NTPF. Therefore, the Deputy President found that, pursuant to the Police Act, the Appellants were statutory office holders. However, the Deputy President proceeded to consider this correspondence at [103]-[111] of the Decision in any event and concluded that the word “employment” in the correspondence had its general meaning and not a legal meaning and did not alter the Appellants’ status as members of the NTPF to “employees” at common law.
Other matters
The Deputy President then turned to consider other matters raised at first instance by the parties.
First, the Appellants pointed to the fact that previous decisions of the Commission have dealt with unfair dismissal applications made by members of the NTPF. However, the Deputy President noted that in those decisions the respondent did not argue that members of the NTPF were not protected from unfair dismissal and therefore the Commission did not consider that question. The Deputy President found that these decisions did not preclude the Respondent from raising its jurisdictional objection in these proceedings. He noted that jurisdiction either exists or it does not.
Second, the Respondent contended that even if the Appellants were employees at common law of the NTPF, the Appellants were not public sector employees for the purposes of the Act and, as a result, they cannot be “national system employees” for the purpose of Part 3-2. The Deputy President rejected this submission, noting that the expressions “public sector employment” and “public sector employee” are not used or referred to in the definition of “national system employee” or in Part 3-2 of the Act and are not relevant to the question of whether the Appellants are “national system employees” and protected from unfair dismissal under the Act.
Conclusion
In conclusion, the Deputy President made the following findings and dismissed the Appellants’ applications for an unfair dismissal remedy:
“[123] The Applicants did not have employment relationships with the Respondent. They were not “national system employees” within the meaning of s 13 of the FW Act. Accordingly, they are not entitled to the protection of the unfair dismissal provisions of the FW Act. It follows that the application made by each Applicant for relief from unfair dismissal must be dismissed.
[124] The Applicants were not left without a right to challenge their dismissal from the NTPF. They had the right to appeal to an Inability Appeal Board against the direction, action or intention of the Police Commissioner to retire them from the NTPF pursuant to s 89 of the Police Act. An Inability Appeal Board had the power to allow such an appeal “in whole or in part and direct the Commissioner to take such action … as the Appeal Board considers necessary”.”
Grounds of appeal and submissions
The Appellants advanced three grounds of appeal as set out in their F7 – Notice of Appeal and written submissions. Each ground is directed to the proposition that the Deputy President erred in finding that the Appellants as members of the NTPF were not national system employees. We have summarised these grounds and the submissions as follows:
Ground 1
At [109] of the Decision the Deputy President found:
“Contrary to the Applicants’ submissions, the Police Act does not permit or provide for the coexistence of a contract of employment and an oath agreement between a member of the NTPF and the Police Commissioner.”
By appeal ground 1, the Appellants contend that the Deputy President erred in finding that the Appellants submitted that the Police Act permits the coexistence of a contract of employment with an oath agreement between a member of the NTPF and the Police Commissioner. The Appellants contend that they did not submit that there was a contract of employment between a member of the NTPF and the Police Commissioner.
The Appellants refer to their submissions at first instance,[5] which are summarised as follows:
a) under the Northern Territory’s Administrative Arrangements Order (No. 2) 2022 (AA Order), Part III of the Police Act is the responsibility of the Minister for Public Employment;
b) a certified consent agreement between the Minister for Public Employment and the Police Association binds the Crown and members of the police force; and
c) the offer and acceptance of employment between each of the Appellants on one hand, and an officer of the Northern Territory Police, Fire and Emergency Services (NTPFES) on the other, reflects the binding relationship between the Appellants and the Northern Territory (NT).
Further, the Appellants submit that the Police Act specifically provides for the Crown to be bound by way of an agreement entered into by the Minister for Public Employment as evidenced from s.54(1). The Appellants also point to the Northern Territory Police Force Consent Agreement 2019, which states at 5(9): “The objectives of this Consent Agreement are: ... to facilitate appropriate regulation and employment conditions through Consent Agreements; …” The Appellants submit that the binding nature of an employment agreement is different from a duty under the command of the Police Commissioner.
The Appellants argue an employment relationship exists with the NT as the Appellants were paid and received pay slips, and their terms and conditions of employment were regulated by an agreement entered into by the Minister for Public Employment. The Appellant’s contend that this is distinct from an appointment for the purpose of s.148A of the Police Act, and accordingly it follows that s.53 of the Self Government Act should be enlivened.
Further, the Appellants submit that the meaning of “employment” in s.53 captures the relationship between the NT and the Appellants for the purpose of s.53(3) of the Self Government Act, and therefore enlivens the jurisdiction of the Act with regard to employment matters not regulated by a tribunal established by enactment before July 1978.
Accordingly, it is the Appellants’ submission that they “correctly identified” the NT trading as NTFFES as a national system employer for the purpose of s.14 of the Act. The Appellant’s position is that the NTPFES is an agency of the Crown, with statutory obligations to report on the financial management of its employees, including of police officers.
Ground 2
The Appellants contend that the Deputy President erred in finding at [123] that the Appellants did not have an employment relationship with the Respondent and were not national system employees. It is submitted that the Deputy President mistook the Police Commissioner for the Respondent and the Deputy President’s reasoning is predicated on the Police Commissioner’s “perceived lack of employer status.” The Appellants contend that the authorities referred to by the Deputy President involve respondent Police Commissioners.
The Appellants further submit that the Deputy President did not consider the nature of agreement with regard to employment conditions expressly binding the Crown, as distinct from duty under the command of a Police Commissioner.
To this point, the Appellants refer to their first instance submission that the NT was their employer.[6] They submit that the Respondent party was the NTPFES, which is the trading name of the employer and an Agency under the AA Order. The Appellants refer to different agency documents which refer to members of the NTPF as employees. The Appellants submit that the Decision at [103] failed to address the organisational name of the party making the offer of employment, and that if this was specified it would have been the NTPFES.
The Appellants submit that the NT’s statute book does not prohibit the coexistence of employment at common law with appointment under statute and that this is also consistent with the offer to appointment by the Police Commissioner under s.16 of the Police Act. The Appellants refer to, inter alia, the Motor Vehicles Act 1949 (NT) and the Local Government Act 2009 [sic][7] as examples. Further, the Appellants rely on Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd[8] (Personnel Contracting) in support of their contention that the High Court has held that the responsibility of the party paying the worker and performance of the worker are both factors that contribute to a finding that the worker is a national system employee. The Appellants submit that their employment relationship with the NT, trading as NTPFES, satisfies these criteria. Likewise, the Appellants submit that the NT, by way of its agency NTPFES and the Minister for Public Employment, controls or negotiates the industrial environment in which they worked.
Ground 3
The Appellants contend that the Deputy President erred at [123] of the Decision in finding that the Appellants did not have employment relationships with the Respondent and were not national system employees. It is alleged that the Deputy President erred because the offer and acceptance through the letters of offer provides the premise to employ and be employed; and the Deputy President failed to consider that the Police Act is specifically binding on the Crown with respect to the work-wages bargain; and the significance of the AA Order positioning NTPFES as employing the Appellants for the purpose of the Financial Management Act 1995 (NT). The Appellants argue that the contract of employment therefore stands.
Public Interest
The Appellants submit that the appeal raises issues of importance and general application, and it is in the public interest for the Commission to grant permission to appeal. The Appellants wish to clarify the scope of work arrangements that are contained in s.53 of the Self Government Act. Further, the Appellants submit that the Decision manifests an injustice and the result is counter intuitive as it leads to the conclusion that NT police officers have no recourse to a merits review jurisdiction with the power to issue binding orders and publish-at-large decisions in relation to dismissal. The Appellants argue that [64] of the Decision is counter intuitive. Finally, the Appellants argue that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.
Principles on appeal
The Decision subject to appeal was made under Part 3-2- Unfair Dismissal – of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.
The public interest test in s.400(1) is not satisfied simply by the identification of error or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin, a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…”[9]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[10] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
The Full Bench is satisfied that the grant of permission to appeal in this matter is in the public interest. We are of the view that the appeal concerns issues of importance and general application concerning the jurisdictional issue of whether members of the NTPF are national system employees for the purposes of the Act, and accordingly, whether the Commission has the power to deal with the dispute. Permission to appeal is therefore granted in accordance with s.400(1) of the Act.
Consideration
Upon a considered analysis of the parties’ submissions on appeal, we are not satisfied that the Appellants have identified any instance of appealable error in the Decision. We consider that the Deputy President’s approach to dealing with the Appellants application was correct. We agree with the Deputy President’s ultimate finding that the Appellants were not “national system employees” within the meaning of s.13 of the Act and accordingly that the Appellants are not entitled to the protection of the unfair dismissal provisions of the Act. Further, we are satisfied that the Deputy President applied the correct legal principles to determine whether the Commission had jurisdiction to hear these applications. Our analysis of the Appellants’ grounds of appeal is set out below.
Ground 1
The contention advanced by appeal ground 1 is that the Appellants were employees of the NTPFES (and not the Police Commissioner) and that their employment stood separate to their appointed statutory role under the Police Act. The Appellants frame this ground of appeal as an erroneous interpretation by the Deputy President of their submissions at first instance. The Appellants emphasise that it was not their submission that there was a contract of employment between members of the NTPF and the Police Commissioner. Rather, they say that the employment relationship existed with the NTPFES which is a national system employer for the purposes of s.14 of the Act.
At the outset, we note that at [7] of the Decision, the Deputy President stated as follows:
“I will consider the relevant provisions of the Self Government Act on the assumption (without deciding) that the Applicants were employed by the Respondent during their time as members of the NTPF.”
The parties did not address this aspect of the Decision in their submissions in respect of appeal ground 1. On one view, [7] of the Decision may demonstrate that the Deputy President proceeded on the basis of the Appellants’ contention that they were employees of the Respondent, NTPFES, without reaching a concluded view. If this is so, the contention that the Deputy President erred by failing to consider the Appellants as employees of NTPFES would fail.
However, it may also be open to infer that the assumption in [7] of the Decision is limited to the Deputy President’s analysis of the Self Government Act and does not bear upon the consideration of whether the Appellants were national system employees. In the absence of submissions on the point, we proceed on this basis and turn now to consider the contentions advanced by appeal ground 1.
While we accept that the final sentence of [109] of the Decision refers to the Police Commissioner and not the Respondent, this is immaterial to the substantive issue being dealt with in [109]. It is apparent that the Deputy President was under no misapprehension as to the Appellants contention that they were employees of NTPFES. The Deputy President stated:
“[101] In support of their argument that they were employees at common law of the Respondent, the Applicants rely on letters provided to them by the Commissioner of Police at the time they commenced with the NTPF…”
While the Deputy President concluded that the letters did not assist the Appellants’ contention that they were employees of the Respondent, the Deputy President proceeded to consider them in any event. The letters were issued to the Appellants by the Police Commissioner and commence with the statement, “[t]he Commissioner of Police is pleased to offer you appointment…”[11]
The Deputy President found that even if the Police Commissioner had the power under the Police Act to enter into contracts of employment with members of the NTPF, which co-existed with their appointment as statutory office holders, he did not consider that the letters “sent to, and accepted by, the Applicants at the time of their commencement with the Respondent constituted, or evidenced the existence of contracts of employment.”[12]
It is plain from the Deputy President’s finding at [109] of the Decision, read together with [92], that the Deputy President determined that NTPF members can only perform the duties of a police officer having taken the oath, which requires them to serve the Crown. Further, the Deputy President determined that s. 27 of the Police Act provides for terms and conditions of employment “but only ‘as a member of the Police Force, as provided by this Act’.”[13] The Deputy President proceeded by finding that there is “no suggestion that the terms and conditions of employment are specified in or dealt with by an employment contract.” In that context, the reference in the final sentence of [109] to the Police Commissioner (from whom the letter is sent) in lieu of the NTPFES as a potential putative employer is not to the point, as the Deputy President’s finding was that the Police Act does not admit the co-existence of a contract of employment and the oath in any event.
The Appellants seek to challenge the Deputy President’s conclusion in this respect by relying on three matters which they say demonstrates the co-existence of a contract of employment between each of them and the NTPFES. First, that the Appellants were employees of the NTPFES due to the responsibilities allocated by the AA Order to the Minister for Public Employment for Part III of the Police Act. Second, that the consent agreement deals with employment conditions, which differs from duty under the command of the Police Commissioner. Third, that the Appellants each received a letter of offer to become a member of the NTPF and received pay slips from the NT (trading as the NTPFES).
Each of these three contentions restate the Appellant’s submissions at first instance.[14] It is not the function of the appeal process to provide the Appellants with an opportunity to re-run their case, absent error in the primary Decision. However, having regard to the manner in which these matters are framed in the Notice of Appeal, we address these contentions below in our analysis of appeal ground 1. In each case, however, we are satisfied that the Appellants have not demonstrated appealable error in the Deputy President’s finding at [109] of the Decision.
With respect to the first contention, we are satisfied that the AA Order is not relevant in the determination of whether NTPF members are employees, nor if they are, the putative employer’s identity. The AA Order is the arrangement determined by the Chief Minister for allocation of executive responsibilities for the machinery and operation of the government. To the extent that it is contended that the Deputy President erred by failing to address the operation of the AA Order in the Decision, such contention of error is rejected. There was no requirement for the Deputy President to refer to the AA Order in circumstances where the AA Order does not amend or vary the nature of engagement or appointment of persons under legislation. The Deputy President dealt with those matters which were centrally relevant and set out the reasoning which led to his determined outcome.[15] We otherwise reject the contention that the AA Order demonstrates the co-existence of a contract of employment between the Appellants and the NTPFES.
The Appellants’ second contention relates to the consent agreement. At [94] of the Decision the Deputy President set out the nature of the consent agreement under the Police Act and at [96] the meaning of “employment” in the consent agreement:
“[94] Section 51 of the Police Act permits the Minister and the Police Association to enter into consent agreements relating to the remuneration and terms and conditions of service of members of the NTPF. Such consent agreements, once made and certified by the Police Arbitral Tribunal, are binding on the Crown, the Police Commissioner and members of the NTPF: s 54 of the Police Act. These consent agreements determine and govern the remuneration and other relevant terms and conditions of service of members of the NTPF…
[96] When these definitions are read in context with the remaining provisions of the Police Act and in light of the emphasis throughout the Police Act on members of the NTPF being statutory office-holders, I am of the opinion that the word “employment”, where it is used in these definitions, other provisions of the Police Act and the Northern Territory Police Force Consent Agreement 2019 (made pursuant to Part III of the Police Act), should be construed, in its general sense, to mean the engagement of a person who is paid for performing work on a regular basis at the request, and at the direction, of another...” (emphasis added)
It is clear from these findings that the Deputy President considered the Appellants’ contention that the consent agreement supports the existence of an employment relationship. The Deputy President concluded that, in this context, it does not. The Appellants do not raise any specific contentions of appealable error in respect of the findings at [94] and [96] of the Decision, and nor is any error apparent.
The third matter advanced by the Appellants is that an employment relationship exists between them and the NTPFES as demonstrated through the letter of offer to become members of the NTPF and the pay slips from the NTPFES. As earlier noted, the Deputy President dealt with the Appellants submissions concerning the letter of offer at [107] of the Decision and found that the offer was not a contractual offer but was an “appointment” to the position of statutory office holder under the Police Act. The Appellants further contend that the consent agreement and their pay slips support a finding of an employment relationship and that s.53 of the Self Government Act is therefore enlivened for termination of employment disputes. However, the Appellants’ contention in this respect does not point to any error in the Decision. As we have rejected any contention of error in respect of the consent agreement, the submission that the combined effect of the consent agreement and the payslips in fact supports a conclusion that the Appellants were national system employees cannot succeed.
The Appellants have not established that the Deputy President erred in in the manner contended. Having regard to the above matters, and the conclusions reached, we dismiss appeal ground 1.
Ground 2
The Appellants contend by appeal ground 2 that the Deputy President erred in finding at [123] of the Decision that the Appellants did not have an employment relationship with the Respondent and were not national system employees. The Appellants submit that this error emerged because the Deputy President “mistook the Commissioner of Police for the Respondent.”
It is contended by the Appellants that the Deputy President’s reasoning “is predicated on a perceived lack of employer status of the Commissioner of Police.” In addition to the matters addressed in respect of appeal ground 1, we do not accept the contention that the Deputy President’s analysis was based on the “perceived lack of employer status” of the Police Commissioner. Rather, as is apparent from the Decision, the Deputy President engaged in a considered construction of the Police Act. As the Decision demonstrates, police officers are appointed as statutory office holders and are not engaged as employees under contracts of employment. The Deputy President found as follows:
[99] In my opinion, the Police Act does not disclose a legislative intention to abrogate, either in whole or in part, the long-recognised principles of the common law concerning the status and legal standing of police officers as statutory office holders, not employees at common law. My conclusion in this regard is consistent with the judgment of Southward J and Mildren AJ in The Queen v Rolfe (No. 5), in which their Honours observed:
“[33] The words “performance of duties as a member” in s 148A(1) and elsewhere in Part VIIA of the Police Administration Act have been carried forward from repealed s 163(1). They are reflective of the tortious and vicarious liability matters dealt with in Part VIIA. They are equivalent words to the words “in the course of employment” which are commonly used in matters involving the vicarious liability of employers for employees. The Legislature used the words “performance of duties as a member” because members of the police force are independent statutory office holders. They are not employees. However, the Territory is vicariously liable for police torts committed by members of the police force in the performance of their duties as members.” [emphasis added]
The Appellants point to no error in the Deputy President’s approach to the construction exercise taken in respect of the Police Act, or to the finding at [99] of the Decision.
The Appellants seek, by way of their submissions, to advance fresh evidence in this appeal proceeding by way of their reliance upon the NTPFES Annual Report 2020-2021. We decline to accept this material. As observed in Curtis v Darwin City Council,[16] the appeal process is not an avenue for an unsuccessful party to seek to cure shortcomings in the way the case was run at first instance. In any event, the well-settled principles governing the discretion to admit new evidence or to consider further material do not satisfy us that the new evidence should be admitted.[17] Relevantly, we are not satisfied that the NTPFES Annual Report 2020-2021 discloses any relevant material such that there is a high degree of probability that it would lead to a different interpretation of the Police Act.[18]
Nor are we persuaded by the Appellants’ contentions that (a) their appointment as statutory officers does not prohibit coexistence of employment at common law by reason of four unrelated NT statutes, or (b) the High Court decision in Personnel Contracting should contribute to a finding that the Appellants are national system employees by reason of their receipt of payment and performance. These contentions do not speak to any error in the Decision and are thereby misplaced.
The Appellants have not identified appealable error in respect of the Deputy President’s penultimate conclusion at [123] of the decision that the Appellants are not national system employees. Appeal ground 2 is dismissed.
Ground 3
Appeal ground 3 is a further re-framing of appeal grounds 1 and 2. There are no matters advanced by the Appellants through appeal ground 3 which have not otherwise been dealt with in this decision. The contention that the Deputy President erred at [123] of the Decision has already been rejected.
We dismiss appeal ground 3.
Order and disposition
Permission to appeal is granted.
The appeal is dismissed.
VICE PRESIDENT
Appearances:
Matter determined on the papers.
Final written submissions:
24 November 2022, for the Appellant.
25 November 2022, for the Respondent.
[1] [2022] FWC 2101 (the Decision).
[2] [2017] HCA 34 (Kiefel CJ, Nettle and Gordon JJ).
[3] Ryan v Commissioner of Police, NSW Police Force [2022] FCAFC 36.
[4] Ibid at [90].
[5] Appeal Book 1535 at [19C], [36], [42]-[46] and further [23], [36] and Exhibit B at [17].
[6] Appeal Book 1538-1539 at [16], [17] and [18].
[7] We proceed on the basis that the Appellants refer to ss. 170-171 of the Local Government Act 2019 (NT).
[8] [2022] HCA 1; 96 ALJR 89.
[9] (2010) 197 IR 266 at [27].
[10] Wan v AIRC (2001) 116 FCR 481 at [30].
[11] Appeal book 33 at [103].
[12] Appeal book 33 at [107].
[13] Appeal book 30 at [92].
[14] see Appeal Book 1535 at [19C], [36], [42]-[46] and further [23] and Exhibit B at [17].
[15] Ross Kennedy v Qantas Ground Services Pty Ltd[2020] FWCFB 394 at [23]; Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157, (2013) 240 IR 178 at [47].
[16] Curtis v Darwin City Council[2012] FWAFB 8021 at [80] citing KA Murphy v SF Finance Pty, Print P1395, 29 May 1997.
[17] Zahar Levin v Douglas and Mann Pty Ltd T/A Histopath Diagnostic Specialists[2022] FWCFB 39 at [17] citing Akins v National Australia Bank [1994] 34 NSWLR 155 at 160.
[18] Akins v National Australia Bank [1994] 34 NSWLR 155 at 160.
Printed by authority of the Commonwealth Government Printer
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