Travis Mulder (Applicant) v Victoria Police (Respondent)

[2020] FWC 10

[2020] FWC 10

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Travis Mulder
(Applicant)
v
Victoria Police
(Respondent)
(U2017/199)

DEPUTY PRESIDENT MANSINI MELBOURNE, 2 JANUARY 2020

Application for an unfair dismissal remedy.

[1] Mr Travis Mulder (Applicant) has applied for a remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Fair Work Act), alleging his retirement from the Victorian police force constituted an unfair dismissal.

[2] I have determined that the application is not able to proceed because the necessary power was not referred by the state of Victoria, meaning the Applicant is not an “employee” for the purposes of the unfair dismissal provisions in the Fair Work Act and the Commission has no jurisdiction to deal with the application. The reasons for this decision follow.

History of the matter

[3] On 4 January 1995, the Applicant commenced employment as a member of the Victoria Police. 1

[4] For a period of at least two years and up until the time of his termination, the Applicant was not able to perform his role as Leading Senior Constable due to medical incapacity. 2

[5] Effective 17 December 2016, the Applicant’s employment came to an end. 3 The Applicant alleges that he was forced to retire on false grounds of ill health, in circumstances which amount to unfair dismissal in accordance with s.394 of the Fair Work Act. The Respondent denies these allegations and maintains that the Applicant was ill health retired in accordance with s.67(3) of the Victoria Police Act 2013 (Vic) and consistent with a sworn agreement.

[6] Following an unsuccessful attempt at conciliation on 13 February 2017, the Respondent pressed its primary objection to the jurisdiction of the Commission. The objection is made on the basis that the Applicant is a person excluded from the Commonwealth unfair dismissal laws by operation of the Fair Work (Commonwealth Powers) Act 2009 (Vic) (Victorian Referral Act).

[7] The matter was initially listed for hearing before Commissioner Gregory on 24 March 2017 but did not proceed on account of a series of adjournment requests by the Applicant, not opposed by the Respondent and ultimately granted by Commissioner Gregory, as follows:

a) In March, April and May 2017, the Applicant requested adjournments to allow him time to seek legal representation (adjournment requests not opposed); 4

b) In September 2017 and April 2019, the Applicant requested further adjournments pending developments in proceedings with the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) and the Victorian Civil and Administrative Tribunal (VCAT) (adjournment requests not opposed). 5

[8] On 7 November 2019, Commissioner Gregory’s Associate contacted the Applicant inquiring as to whether the matter had resolved. That same day, the Applicant responded to advise that he wished to proceed with this unfair dismissal claim but only after his ongoing VCAT claim had concluded.

[9] On 21 November 2019, the Commission’s Unfair Dismissals Case Management Team wrote to the parties seeking further information in support of, and a response to, the latest adjournment request. The letter also foreshadowed that the unfair dismissal application may be dismissed for no reasonable prospects of success under s.587(1) of the Fair Work Act, if multiple applications had been made in relation to the Applicant’s dismissal.

[10] On 22 November 2019, the Applicant responded to the Commission’s letter asserting that the issues raised in the VCAT proceedings were separate to his unfair dismissal claim. He attached an interim decision of VCAT which included an order that “those aspects (of the Applicant’s claim) which duplicate the unfair dismissal claim presently before the Fair Work Commission are struck out”. 6

[11] On 3 December 2019, the Respondent provided an outline of submissions in which it pressed its primary objection (relying on submissions originally filed on 9 March 2017 and a decision of this Commission in Anderson v Victoria Police 7). To the extent necessary, it also sought to rely on the prohibition on multiple actions at ss.725 and 729 of the Fair Work Act as a basis for the application to be dismissed under s.587(1) because it said that both the Applicant’s VEOHRC and VCAT claims were made in relation to the dismissal.

[12] On 13 December 2019, the parties attended a Mention before me. As the Applicant opposed the jurisdictional objections, a further opportunity was afforded for the filing of materials in relation to the jurisdictional objections. Subject to further assessment once all materials were filed, the jurisdictional objections were proposed for determination on the papers. Directions issued accordingly, with a direction that the parties were at liberty to apply for a hearing. 8

[13] On 18 December 2019, the Applicant filed his further response to the jurisdictional objections and, on 20 December 2019, the Respondent filed its reply.

[14] The Applicant’s submissions alleged deficiencies in the process for determining his retirement, inadequacy of the grounds of his retirement (said to be “non-medical”) and that he was told he could not appeal to the Police Regulation and Services Board (PRSB) which is the reason why he brought this unfair dismissal claim. He also sought to argue that VCAT had separated the claims by its decision that certain aspects be reserved for the scrutiny of the Commission.

[15] The Respondent argued that there was no basis for the Commission to find jurisdiction given the operation of the Victorian Referral Act. Even if the Applicant could prove the alleged communication about appeal to the PRSB (which the Respondent did not accept), this would not overcome the fact that matters pertaining to the termination of “law enforcement officers” are excluded from the Commission’s jurisdiction. The Respondent did not accept the Applicant’s characterisation of the VCAT claim and, in any event, argued that the already concluded VEOHRC claim would of itself amount to a bar to this unfair dismissal claim by virtue of ss.725 and 729 of the Fair Work Act.

[16] Neither party requested that the Commission convene a hearing before determining the jurisdictional objections or sought to be represented. On review of the materials, I consider it appropriate to determine the jurisdictional objections on the papers.

Is the Applicant covered by the unfair dismissal provisions of the Fair Work Act?

Statutory framework

[17] The Fair Work Act regulates “national system” employers and employees. One of the constitutional foundations of the legislation means that it covers employers and employees of a state or territory of Australia to the extent of matters that have been referred by statute to the Commonwealth. 9

[18] The Fair Work Act includes provisions that deal with the unfair dismissal of “employees”, and the granting of remedies when this happens. 10

[19] “Employee” is defined for the purposes of Part 3-2 (Unfair Dismissal) to mean “national system employee”. 11 “National system employee” is defined at s.13 of the Fair Work Act, with that meaning extended at s.30M in relation to a referring State 12 to mean:

“

13 Meaning of national system employee

A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.

Note: Sections 30C and 30M extend the meaning of national system employee in relation to a referring State.

[…]

30M Extended meaning of national system employee

(1) [Meaning of national system employee]

A national system employee includes:

(a) any individual in a State that is a referring State because of this Division so far as he or she is employed, or usually employed, as described in paragraph 30N(1)(a), except on a vocational placement; and

(b) a law enforcement officer of the State to whom subsection 30P(1) applies.

(2) This section does not limit the operation of section 13 (which defines a national system employee).

Note: Section 30S may limit the extent to which this section extends the meaning of national system employee .”

[20] Section 30P in turn provides:

“

Extended ordinary meanings of employee and employer

(1) [Reference includes State law enforcement officer]

A reference in this Act to an employee with its ordinary meaning includes a reference to a law enforcement officer of a referring State if the State’s referral law so provides for the purposes of that law.

[…]

(2) [Application of s 15]

This section does not limit the operation of section 15 (which deals with references to employee and employer with their ordinary meanings).

Note: Section 30S may limit the extent to which this section extends the meanings of employee and employer .”

[21] And s.30S provides:

“

30S Division only has effect if supported by reference

A provision of this Division has effect in relation to a State that is a referring State because of this Division only to the extent that the State’s referral law refers to the Parliament of the Commonwealth the matters mentioned in subsection 30L(1) that result in the Parliament of the Commonwealth having sufficient legislative power for the provision so to have effect.”

[22] In the context of this application, the relevant “State referral law” is the Victorian Referral Act. 13

[23] Under the Victorian Referral Act, “any law enforcement officer” is defined as “an employee in the public sector” for whom the Victorian Chief Commissioner of Police is taken to be the employer. 14 Further, “law enforcement officer” is defined in the Victorian Referral Act to mean “a police officer, police reservist, police recruit, protective services officer or special constable within the meaning of the Victoria Police Act 2013”.15

[24] The Victorian Referral Act excludes certain matters from the general referral of workplace relations matters to the Commonwealth 16 and, specifically in relation to law enforcement officers, as follows:

“

5 Matters excluded from a reference

[…]

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

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

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

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

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

[25] The rationale for Victoria’s exclusion of law enforcement officers from the referral to the Commonwealth was described by the then Minister, in Parliament as follows:

“Whilst the new referral will result in almost all Victorian workers having the protection of the federal laws, it is important to note that some exemptions are made. These exemptions are similar to those that have operated since the Kennett government made the first referral of industrial relations powers in 1996.

[…]

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

[…]

Victoria will not refer certain additional matters in relation to law enforcement officers. Again these matters were excluded from Victoria’s previous referral. They are appropriate to maintaining the integrity of state laws governing law enforcement officers.” 17

Consideration

[26] It is not disputed that the Applicant was employed by the Respondent as a member of the Victorian Police and that, immediately prior to the employment coming to an end, the Applicant had not been at work in his position of Leading Senior Constable due to medical incapacity.

[27] That the Applicant was not able to perform his role and absent from the workplace due to medical incapacity did not change the position he was engaged to perform. 18 The various records provided to the Commission also reflect that the Applicant’s employment classification remained as Leading Senior Constable up until and as at his retirement.19

[28] Accordingly, and for present purposes, the Applicant was a police officer and therefore a law enforcement officer within the meaning of the Victorian Referral Act. 20

[29] Having regard to the statutory provisions detailed above, in the case of a law enforcement officer employed in Victoria, the Fair Work Act (and relevantly Part 3-2 – Unfair Dismissal) only extends to cover if the Victorian Referral Act so provides. 21

[30] In the Victorian Referral Act, the Victorian Parliament has expressly excluded certain matters relating to the termination of Victorian law enforcement officers from referral to the Commonwealth. The only exceptions to the exclusions are for any claim:

a) pertaining to notice of termination of employment and payment in lieu of notice of termination of employment;

b) dealt with at Divisions 1 and 2 of Part 6-4 (Additional protections relating to termination of employment). 22

[31] This application for a remedy was made under s.394 of the Act and alleges unfair dismissal which is provided for in Part 3-2 of the Fair Work Act, being an excluded matter not subject of referral under the Victorian Referral Act. The Applicant is therefore not an “employee” protected by Part 3-2 and as defined in the Fair Work Act. 23

[32] As the Victorian Referral Act does not confer such power to the Commonwealth, the Commission has no jurisdiction to deal with this application under Part 3-2. In these circumstances, there is no basis for the Commission to determine the remaining objection under ss.725 and 729 regarding multiple applications or indeed whether the Applicant’s retirement was unfair.

[33] For completeness, even if an application had been made within the referred jurisdiction under the Fair Work Act, in that event there would appear to be substantial merit to the argument that s.725 of the Fair Work Act would act as a bar, noting the VEOHRC claim has been pursued and concluded and the ongoing VCAT claim refined to exclude only those elements of an unfair dismissal claim as distinct from other dismissal related claims.

[34] For the above reasons, the application is not able to proceed for want of jurisdiction.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR715670>

 1   Form F2 Application dated 6 January 2017 (Original Application) and Form F3 Response dated 17 January 2017 (Original Response).

 2   Original Application and see also various documents attached to the Original Response.

 3   Original Application and Original Response.

 4   There is no record on the Commission’s file of a legal representative commencing to act.

 5   Commenced by the Applicant on 3 November 2017 and 20 April 2018, respectively.

 6   Mulder v Victoria Police (Human Rights) [2019] VCAT 372, dated 5 April 2019.

 7   [2012] FWA 8524.

 8   Directions dated 13 December 2019.

 9 Section 51(xxxvii) of the Australian Constitution. Note the Fair Work Act is also underpinned by the corporations, territory and external affairs powers at ss.51(xx), 122 and 51(xxix) of the Australian Constitution, respectively.

 10 Section 6 and see Part 3-2 of the Fair Work Act.

 11 Section 380 of the Fair Work Act.

 12   Per s.30L, where the referral of matters occurred after 1 July 2009 but on or before 1 January 2010 (the Referral Act originally commenced on 1 July 2009; the relevant amending legislation was given assent on 1 December 2009 and commenced on 1 January 2010).

 13   That is, the Fair Work (Commonwealth Powers) Act 2009 (Vic) (as defined at paragraph [6] of this Decision).

 14   Section 2(2) of the Victorian Referral Act.

 15   Section 3 of the Victorian Referral Act.

 16   At section 4 of the Victorian Referral Act.

 17   Victorian Parliamentary Hansard Legislative Council 4 June 2009, pp 2680-2681.

 18  An argument foreshadowed at the Mention of 13 December 2019, but not ultimately pressed in the Applicant’s filed materials.

 19   See, for example, the attachments to the Original Response including medical assessments and correspondence regarding the dismissal and attachments to the Applicant’s final submissions dated 18 December 2019.

 20   Sections 2(2) and 3 of the Victorian Referral Act.

 21 See in particular ss.13, 30P and 30S of the Fair Work Act; having regard to Part 3-2 including ss.380 and 382 of the Fair Work Act.

 22   Section 5(2)(b) of the Victorian Referral Act.

 23 See in particular ss.380, 13 and 30P of the Fair Work Act when read with ss.4 and 5 of the Victorian Referral Act.