David John Orchard v Victoria Police; Patrick Bernard Gehrig v Victoria Police; Allan Stuart Glasgow v Victoria [1998] FCA 44 (6 February 1998)

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - termination of employment - applicants members of the Victoria Police Force - whether employer/employee relationship exists between the Crown and a member of a police force - whether Division 3 of Part IVA ("the Division") of the Workplace Relations Act 1996 treats "employment" as a wider concept than the traditional employer/employee relationship.

PRACTICE AND PROCEDURE - claim brought in accrued jurisdiction of the Federal Court - identical claim already before the Federal Court through cross vesting order from the Supreme Court of Victoria - whether claim in the accrued jurisdiction of the Federal Court should be determined or considered otiose.

Workplace Relations Act 1996 (Cth) Div 3 Pt VIA, s 170EA

Convention Concerning Termination of Employment at the Initiative of the Employer Art 2

Workplace Relations Regulations, Reg 30BB

Australian Federal Police Act 1979 (Cth), s 6

Vanda Russell Gould v Martin Russell Brown (2 February 1998, High Court of Australia, unreported), discussed

Konrad v Victoria Police (Marshall J, 22 January 1998, unreported), followed

John Ward v Commissioner of Police (Moore J, 14 January 1998, unreported), not followed

Attorney-General for New South Wales v Perpetual Trustee Company (Limited) [1952] HCA 2; (1952) 85 CLR 237, applied

Victoria v The Commonwealth (1996) 187 CLR 416, discussed

DAVID JOHN ORCHARD v VICTORIA POLICE

VI 1339 of 1997

PATRICK BERNARD GEHRIG v VICTORIA POLICE

VI 1340 of 1997

ALLAN STUART GLASGOW v STATE OF VICTORIA

VI 1406 of 1997

MARSHALL J

MELBOURNE

6 FEBRUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	vi 1339 of 1997

BETWEEN:	DAVID JOHN ORCHARD Applicant
AND:	victoria police respondent
JUDGE:	MARSHALL J
DATE OF ORDER:	6 FEBRUARY 1998
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The notice of motion of the applicant dated 6 October 1997 be dismissed.

2. The application be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI 1340 of 1997

BETWEEN:	PATRICK BERNARD GEHRIG APPLICANT
AND:	VICTORIA POLICE RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	6 FEBRUARY 1998
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The notice of motion of the applicant dated 6 October 1997 be dismissed.

2. The application be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI 1406 of 1997

BETWEEN:	ALLAN STUART GLASGOW APPLICANT
AND:	STATE OF VICTORIA Respondent
JUDGE:	MARSHALL J
DATE OF ORDER:	6 FEBRUARY 1998
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The notice of motion of the applicant dated 6 October 1997 be dismissed.

2. The application be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

BETWEEN:	DAVID JOHN ORCHARD Applicant
AND:	VICTORIA POLICE RESPONDENT VI 1339 of 1997
BETWEEN:	PATRICK BERNARD GEHRIG APPLICANT
AND:	VICTORIA POLICE RESPONDENT VI 1340 of 1997
BETWEEN:	ALLAN STUART GLASGOW APPLICANT
AND:	STATE OF VICTORIA Respondent VI 1406 of 1997

JUDGE:	MARSHALL J
DATE:	6 FEBRUARY 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

The applicants are former police officers who were members of the Victoria Police Force ("the Force"). Each of them was dismissed from the Force in late 1996. Applications were made by each applicant pursuant to s 170EA Workplace Relations Act 1996 (Cth) ("the Act") in which it was alleged that the dismissal of them from the Force constituted, in each case, an unlawful termination of employment. Mr Orchard and Mr Gehrig filed their applications in the Australian Industrial Relations Commission ("the Commission") on 3 December 1996. Mr Glasgow filed his application in the Commission on 20 December 1996. No material distinguishing feature arises in relation to any one application, save that Mr Glasgow's application, named the State of Victoria as a respondent rather than Victoria Police. This, no doubt, can be attributed to the judgment of Judicial Registrar Murphy in Konrad v Victoria Police (Industrial Relations Court of Australia, 16 December 1996, unreported) in which it was found that Victoria Police was not a juristic person. The progress of the applications in the Court also does not reveal any material distinguishing feature so I will refer to the circumstances of Mr Orchard's application as being representative of all the applications and to that application as "the matter".

On 4 April 1997 Commissioner Gay certified that the Commission had been unable to settle the matter by conciliation and that the parties had not elected to have the matter dealt with by consent arbitration. On 13 May 1997 Judicial Registrar Parkinson, sitting in the Industrial Relations Court of Australia ("IRCA"), made certain procedural orders including an order that the matter be referred to a judge of IRCA. On 23 May 1997 the matter came before me for directions, when sitting as a judge of IRCA, and was ultimately adjourned by consent to 16 June 1997. On 25 May 1997, as a consequence of Sch 16 to the Workplace Relations and Other Legislation Amendment Act 1996 (Cth), this Court became seized of the matter and from that time I dealt with the matter as a judge of this Court.

Certain jurisdictional issues arising in the matter were listed for hearing over four days commencing on 6 October 1997. Listed before me over the same period, due to the substantially similar jurisdicational issues, was the application by Mr Konrad to review the exercise of power by Judicial Registrar Murphy embodied in his judgment of 16 December 1996.

On 6 October 1997 Mr Orchard filed a notice of motion seeking leave of the Court to amend his application to invoke the Court's accrued jurisdiction to quash certain decisions made by senior officers of the Force and members of the Police Review Commission. The amendment sought by Mr Orchard to invoke this Court's accrued jurisdiction raised identical issues to those raised in proceedings brought by Mr Orchard in the Supreme Court of Victoria ("the Supreme Court") to quash certain decisions made by senior officers of the Force and members of the Police Review Commission. On 15 September 1997 Beach J in the Supreme Court ordered that proceedings which were before him, including one in which Mr Orchard was the plaintiff, should be transferred to this Court pursuant to s 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vict).

The application to invoke the accrued jurisdiction of the Court was heard together with submissions on the jurisdictional issues which were raised by counsel for the Chief Commissioner of Police and the State of Victoria, Mr Jack Hammond. The application to invoke the accrued jurisdiction of the Court was made notwithstanding that the very issues sought to be raised by that application were already before the Court by virtue of the order of Beach J in the Supreme Court. The application appears to have been made out of an abundance of caution having regard to the then reserved judgment of the High Court of Australia ("the High Court") in which the constitutionality of the cross-vesting provisions was in issue.

The High Court judgment in Vanda Russell Gould v Martin Russell Brown (High Court, unreported) was delivered on 2 February 1998. That judgment did not affect the validity of the order of Beach J of 15 September 1997. The matters the subject of that order are within the jurisdiction of this Court. Consequently, I consider the application to invoke the accrued jurisdiction of this Court to be otiose. I dismiss that application in each of the three matters the subject of this judgment.

In Konrad v Victoria Police (Marshall J, 22 January 1998, unreported), I held that officers of the Force were unable to bring applications pursuant to Div 3 of Part VIA of the Act. At the time I delivered my reasons for judgment in Konrad, I was unaware that on 14 January 1998, Moore J had reached a different conclusion in John Ward v Commissioner of Police (Moore J, 14 January 1998, unreported). .

With the greatest respect to his Honour I am content to adhere to the view I adopted in Konrad. My reasons for so doing are as follows. I am unable to form the view that the terms of the Convention Concerning Termination of Employment at the Initiative of the Employer ("the Convention") support the view that Div 3 of Part IVA of the Act applies to persons other than those engaged in work pursuant to a contract of employment. Whilst the pre-Convention deliberations of the International Labour Organisation ("ILO") reveal that a specific exclusion for "the police" from the Convention was considered, I do not believe that that supports the view that police were intended to be covered by the Convention, if police were not employees. Plainly in some countries, police are considered to be employees. However, as I discussed in Konrad, in Australia there is High Court authority that police are not employees.. See Attorney-General for New South Wales v Perpetual Trustee Company (Limited) [1952] HCA 2; (1952) 85 CLR 237.

Moore J held that para 5 of Art 2 of the Convention was intended to permit a member state of the ILO " ... to exclude from the application of the Convention, categories of workers which included the police".

Paragraph 5 of Art 2 of the Convention provides as follows:

"In so far as necessary, measures may be taken by the competent authority or through the appropriate machinery in a country, after consultation with the organisations of employers and workers concerned, where such exist, to exclude from the application of this Convention or certain provisions thereof other limited categories of employed persons in respect of which special problems of a substantial nature arise in the light of the particular conditions of employment of the workers concerned or the size or nature of the undertaking that employs them." (emphasis added)

The very terms of that paragraph, in particular the highlighted portions, support the view that the paragraph addresses categories of persons in employment, i.e. persons who are engaged in work by an employer who "employs them".

Regulation 30BB of the Workplace Relations Regulations which excluded at the relevant time "employees" of the Australian Federal Police ("AFP") from the reach of the material provisions of Div 3 of Part VIA of the Act does not support a contrary view to the one I reached in Konrad. The regulation only applies to "employees". If a member of the AFP is not an employee the regulation is irrelevant. The word "an employee" governs the words "... who is appointed, employed or otherwise engaged". If the contrary was intended the word "person" would have been used and not the word "employee". The regulation appears to have been directed to "staff members" of the AFP referred to in s 6(3) of the Australian Federal Police Act 1979 (Cth) as:

"... senior executive officers, and other officers, who are not police officers."

Further, having re-read the judgment of the High Court in Victoria v The Commonwealth (1996) 187 CLR 416, in particular at 520, I find no support for the view that Div 3 of Part IVA applies to persons who are not employees.

In my opinion each application should be dismissed. The Court has no jurisdiction to deal with the substantive applications before it and the applications to invoke the Court's accrued jurisdiction are otiose.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall

Associate:

Dated: 6 February 1998

Counsel for the Applicants:	Mr Kevin H Bell QC with Mr Richard M Niall
Solicitors for the Applicants:	Holding Redlich
Counsel for the Respondents:	Mr Jack D Hammond appearing under protest for the Chief Commissioner of Police and/or as a friend of the Court and the State of Victoria
Solicitors for the Respondent:	Freehill Hollingdale & Page
Date of Hearing:	6, 7, 8 and 9 October 1997, 27 and 28 November 1997, 3 February 1998
Date of Judgment:	6 February 1998