100002098

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES THE HONOURABLE MINISTER OF POLICE

 COMMISSIONER OF POLICE

APPELLANTS

 -v-

 WESTERN AUSTRALIAN POLICE UNION OF WORKERS

RESPONDENT

CORAM FULL BENCH

  HIS HONOUR THE PRESIDENT P J SHARKEY

  SENIOR COMMISSIONER G L FIELDING

  COMMISSIONER P E SCOTT

DELIVERED TUESDAY, 14 NOVEMBER 2000

FILE NO/S FBA 38 OF 2000

CITATION NO. 2000 WAIRC 01174

_______________________________________________________________________________

Decision  Appeal upheld and decision at first instance quashed.

Appearances

Appellants   Mr G T W Tannin (of Counsel), by leave, and with him,

    Mr R J Andretich (of Counsel), by leave

Respondent   Mr P R Momber (of Counsel), by leave

_______________________________________________________________________________

Reasons for Decision

THE PRESIDENT:

INTRODUCTION

1                 This is an appeal, brought pursuant to s.49 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”), against the decision of the Commission, constituted by a single Commissioner, such decision being itself constituted by a declaration delivered on 14 July 2000 and deposited in the Registry on the same date (see pages 49-50 of the appeal book (hereinafter referred to as “AB”)).  The appeal is brought against the whole of the decision.

2                 The first appellant is the Honourable Minister of Police, the second appellant is the Commissioner of Police and the respondent is an organisation, as that is defined in the Act.

3                 The decision appealed against, formal parts omitted, reads as follows:-

  “THAT:

  1) The Commissioner of Police is obliged to observe the agreements entered into with each and every one of the applicants’ (sic)  members.  That is apply the terms and conditions of all awards, agreements and orders and the provisions of the Police Act 1892 and Regulations.

  2) Police officers who are subject to disciplinary proceedings are entitled to have those proceedings dealt with under s.23 and s.33E of the Police Act 1892

  3) The Commissioner of Police is entitled to use the powers of removal vested in him by s.8 of the Police Act 1892 but in doing so he is not acting as the Crown and is obliged to ensure that natural justice is afforded to any police officer subject to the use of such power.  Natural justice in this context is the natural justice available to a police officer if he was subject to proceedings under s.23 and s.33E of the Police Act 1892.”

GROUNDS OF APPEAL

4                 It is against that decision that the appellants appeal on the following grounds (see pages 2-3(AB)):-

  “1. The Commissioner erred in law and in excess of jurisdiction in purporting to provide purely declaratory relief in terms of the orders made on 14th July 2000 in Application CR 81 of 2000 when there was no power or requirement to do so.

     PARTICULARS

   (a) the Commission may only provide declaratory relief in cases where it is specifically provided for in the Industrial Relations Act, the matter at hand not being one of those cases;

   (b) The Commission may only provide declaratory relief in connection with a matter otherwise within its jurisdiction, there being no such matter before the Commissioner; or

   (c) no action was contemplated as a result of the making of the declaration.

  2. The Commissioner erred in law and in excess of jurisdiction in declaring that in using the power of removal vested in him under section 8 of the Police Act 1892 the Commissioner of Police is obliged to ensure that natural justice afforded to any Police Officer the subject of such power is the natural justice available to a Police Officer if he was the subject of proceedings under section 23 and section 33E of the Police Act 1892.

  3. The Commissioner erred in law in finding he had jurisdiction to deal with the application before him when the same was not an industrial matter.

     PARTICULARS

   (a) an industrial matter can only arise under the Industrial Relations Act in connection with an employer and employee;

   (b) in respect of the individuals the subject of the application before the Commission the Appellant’s (sic) are not in the relationship of employers, those individuals being in the service of the Crown;

   (c) the individuals the subject of application before the Commissioner are not employees for the purpose of the Industrial Relations Act, they are public officers in the service of the Crown;

  4. The Commissioner erred in law in considering affidavit and other material which was not in evidence in the proceedings.”

BACKGROUND

5                 On 24 February 2000, there was a dispute between the Western Australian Police Union of Workers (hereinafter referred to as “the WAPU”) and the Honourable Minister of Police and the Commissioner of Police, the appellants, which was referred for hearing and determination.  There were, in fact, two applications by the WAPU on behalf of seven police officers, one of whom was a commissioned officer who has since resigned.  The applications were taken out because all of the officers, as the Memorandum of Matters for Hearing and Determination under Section 44 (hereinafter referred to as “the Memorandum of Matters”) reveals, were subject to notices given under s.8 of the Police Act 1892 (as amended) (hereinafter referred to as “the Police Act”).

6                 The Schedule to the Memorandum of Matters outlined the dispute and was as follows:-

  “The Western Australian Police Union (the Applicant) represents seven serving police officers each of whom has been served with a notice purportedly issued pursuant to s.8 of the Police Act 1892 and Amendments. The notice advises the recipient that in the absence of being persuaded otherwise, the Commissioner of Police will recommend to the Minister for Police or the Governor, that he approve the removal of the recipient from the Police Force of Western Australia.

  The Applicant says that each of these officers is a member or entitled to be a member of the union.

  The Applicant says that each of its members on joining the Police Force of Western Australia entered into an agreement with the Commissioner of Police, the full force and effect of which will be referred to at hearing, which contain the following terms:-

  (a) that each member’s employment was subject to the provisions of any industrial award or agreement made pursuant to any Industrial Relations Act in force in Western Australia during the course of the member’s engagement;

  (b) that in relation to a member’s conduct during his employment as a police officer, it was always subject to the Police Act 1892 and its Regulations;

  (c) That if an issue arose between the Commissioner of Police and one of the Applicant’s members referred to herein, that issue would be decided pursuant to s.23 of the Police Act 1892.

  The Applicant union says that in relation to the serving police officers referred to in the first paragraph the Commissioner of Police has advised that he has various concerns in relation to the conduct of each officer but has not sought to determine these issues pursuant to Section 23 of the Police Act 1892 and Regulations and is therefore in breach of his agreement with those officers.

  The Applicant union says that as a result of the breach of the agreement referred to herein, the seven serving police officers have been denied recourse in Section 23 of the Police Act 1892 and cannot respond to the Commissioner of Police’s concerns in relation to their conduct as they are entitled, thus leading to their wrongful dismissal.

  The Applicant says that the Commissioner of Police, by failing to observe Section 23 of the Police Act 1892 and its Regulations, has created a situation in which the Applicant union and its members have no confidence in the Commissioner of Police observing the agreement it has entered into with its members in relation to their engagements as police officers within the Western Australian Police Force.

  The Applicant union seeks an order or a direction that the Commissioner of Police observe the agreements as entered into with each and every one of the Applicant’s members, not only in relation to issues of conduct, but all other issues relating to the terms of employment.

  Respondent opposes the claim in all respects and says no order or direction should be made and the claim should be dismissed in its entirety.”

  (See pages 14-15(AB).)

7                 Pursuant to application No CR 41 of 2000, the contention was that the Commission was acting contrary to the Police Act in seeking to determine that the officers should be removed pursuant to s.8 of that Act because he was required to do that, pursuant to s.23 of that Act.

8                 In relation to application No CR 81 of 2000, the contention to the Commissioner was that the Commissioner of Police was in breach of his agreement with the officers involved, because all concerns in relation to their fitness for office should be determined pursuant to s.23 of the Police Act and the Commissioner of Police was acting harshly or oppressively in acting pursuant to s.8 of that Act.

9                 S.8 of the Police Act reads as follows:-

  “8. Removal of commissioned and non‑commissioned officers

  The Governor may, from time to time as he shall see fit, remove any commissioned officer of police, and upon any vacancy for a commissioned officer, by death, removal, disability, or otherwise, the Governor may appoint some other fit person to fill the same; and the Commissioner of Police may, from time to time, as he shall think fit, suspend and, subject to the approval of the Minister, remove any non‑commissioned officer or constable; and in case of any vacancy in the Police Force by reason of the death, removal, disability or otherwise of any non‑commissioned officer or constable, the Commissioner of Police may appoint another person to fill such vacancy.”

10              Pursuant to s.8 of the Police Act, the Commissioner asked the eight officers, the subject of the applications, (later to become seven) to show cause why they should not be removed.  The notices advised, inter alia, that:- “In the absence of being persuaded otherwise, the Commissioner of Police will recommend to the Minister for Police or the Governor that he approve the removal of the recipient from the Police Force of Western Australia” (see page 7(AB)).

11              The WAPU’s contention to the Commission was that, if its members were to be disciplined, which included removal from the Police Force, then the Commissioner was obliged to observe the provisions of the Police Act, and particularly s.23, which reads as follows:-

  “23. Disciplinary measures

  (1) The Commissioner, or an officer appointed by the Commissioner for the purpose, may examine on oath any member of the Police Force and any police cadet upon a charge of an offence against the discipline of the Police Force being made against any member of the Force or cadet.

  (2) Where the member of the Force against whom the charge is alleged is an officer, an examination under this section shall be conducted by an officer of the rank of Chief Superintendent or above.

  (3) The Commissioner or officer conducting an examination under this section shall have the same power to summon and examine witnesses and to administer oaths as a Justice.

  (4) Where the Commissioner or officer conducting an examination under this section determines as a result of that examination that any other member of the Police Force or any police cadet has committed an offence against the discipline of the Police Force, he shall record that determination in writing and, subject to the provisions of subsection (5), may thereupon caution such member or cadet or by order in writing impose on him one or more of the following punishments — 

   (a) a reprimand;

   (b) a fine not exceeding $200;

   (c) reduction to a lower rank;

   (d) reduction in salary to a specified rate within the limits of salary fixed in relation to the rank held by him;

   (e) suspension from duty;

   (f) discharge or dismissal from the Force.

  (5) An order made under subsection (4) for reduction in rank or salary, suspension from duty, discharge or for dismissal, shall not have effect unless or until — 

   (a) in the case of a member who is not an officer, or of a cadet, it is imposed or confirmed by the Commissioner; or

   (b) in the case of an officer, it is confirmed by the Governor.

  (6) An order made under subsection (4) which is subject to confirmation by the Governor shall not be submitted to the Governor for such confirmation unless or until — 

   (a) the time within which an appeal to the Board against the punishment, decision or finding to which the order relates may be made under this Act has elapsed and no such appeal has been instituted; or

   (b) such an appeal to the Board has been instituted and has been determined by the Board in accordance with the provisions of this Act.

  (7) A fine imposed pursuant to this section may be recovered — 

   (a) by deduction from the salary of the member or cadet on whom it is imposed; or

   (b) in like manner to a fine imposed by a Justice under this Act,

    or partly in the one way and partly in the other.”

12              The applications came on for hearing on 23 March 2000 and on 11, 24 and 25 May 2000.  On 25 May 2000, Mr P R Momber of Counsel for the WAPU advised the Commission that, “if [it] felt compelled to determine any jurisdictional issue that the parties be notified and the WAPU would withdraw from the jurisdiction”.  The Commissioner asked what Counsel’s intentions were by letter dated 12 June 2000, and said that he wished to consider both applications for leave to withdraw.

13              On 15 June 2000 (see pages 21-23(AB)), Mr Momber responded in writing, confirming that the clear instructions of the WAPU were to withdraw application CR 41 of 2000, but in relation to CR 81 of 2000, he made the following comments:-

  “It was only in their final submission that the issue of whether or not police officers are employees was raised.

  It is our client’s submission that the issue of employer/employee status is not relevant to the issues raised in CR81 which the union seeks a determination of, being:-

  1. Whether it was a term of their engagement that police officers are entitled to s.23 disciplinary hearings should they be accused of misconduct;

  2. That the failure to grant s.23 disciplinary hearings to the six police officers mentioned in CR81, was likely to lead to their wrongful dismissal.

  My client is not asking the Industrial Commission to make findings that its members are in the relationship of employer/employee or to conclude that any of its members have been wrongfully dismissed.

  As we understood the Commissioner of Police and the Minister of Police’s submissions in CR81, neither was saying that as a preliminary issue you had to determine jurisdiction and in the union’s view, it was far too late for them to make that submission in any event, it being not made until the closing address and only for the purpose of emphasizing the point that the terms of the engagement of any police officer do not fit within the employer/employee relationship.

  In relation to the submission made by me referred to in the first paragraph of your abovementioned letter, may I reiterate that if you conclude that prior to making any determination in matter CR81 of 2000, you felt obliged to make a finding as to whether the Commissioner of Police/the Minister of Police and their police officers were in the relationship of employer/employee, then my client would advise that it is no longer in dispute with the Commissioner of Police/Minister of Police and would withdraw from the jurisdiction in relation to the issues raised in CR81 of 2000.

  In terms of withdrawing from CR41 and CR81 of 2000, my client would not seek to do so without your leave but would submit as I believe I did, that if the union is no longer in an industrial dispute with the Minister of Police and the Commissioner of Police as it is not in CR41, then the basis of your reference for arbitration no longer exists.”

14              The Commissioner held that the issue of jurisdiction was squarely raised by the appellants during the hearing.  The Commissioner held himself bound on the authority of Springdale Comfort Pty Ltd t/a Dalfield Homes v BTA 67 WAIG 325 (IAC) and FEDFAA v BP Company Ltd (1911) 12 CLR 398, to determine that question, before exercising any statutory powers.

15              Counsel for the WAPU made it clear in the proceedings that the WAPU did not wish to have any of the matters raised in the Schedule to CR 41 of 2000 determined, and leave to withdraw for that reference was granted by the Commissioner.

16              As to application CR 81 of 2000, the Commissioner held that leave to withdraw that application could not be granted because the matter had been heard.  The Commissioner held that parties should not be able to withdraw a matter to avoid an adverse order because they think, after consideration, that their case may be deficient in some way.  The Commissioner, therefore, held that to give leave to withdraw in such circumstances would be contrary to the public interest and leave to withdraw was, accordingly, refused.

17              The Commissioner then turned to deal with the question of whether a Police Officer is an “employee” within the meaning of the Act.  In s.7 of the Act, I should observe, an “employee” is defined as follows:-

 “(a) any person employed by an employer to do work for hire or reward including an apprentice or industrial trainee;

 (b) any person whose usual status is that of an employee;

 (c) any person employed as a canvasser whose services are remunerated wholly or partly by commission or percentage reward; or

 (d) any person who is the lessee of any tools or other implements of production or of any vehicle used in the delivery of goods or who is the owner, whether wholly or partly, of any vehicle used in the transport of goods or passengers if he is in all other respects an employee,

 but does not include any person engaged in domestic service in a private home unless — 

 (e) more than 6 boarders or lodgers are therein received for pay or reward; or

 (f) the person so engaged is employed by an employer, who is not the owner or occupier of the private home, but who provides that owner or occupier with the services of the person so engaged;”

18              In s.7 of the Act, an “employer” is defined as follows:-

 “(a) persons, firms, companies and corporations; and

 (b) the Crown and any Minister of the Crown, or any public authority,

 employing one or more employees;”

19              The Commissioner found and observed as follows:-

 (a) The status of Police Officers has been before the courts for many years.

 (b) An extensive review of many of the authorities was recently undertaken by Senior Deputy President Williams in Re Australian Federal Police Association (No. 2) (1993) 51 IR 122.

 (c) The Full Bench of the Australian Industrial Relations Commission in Re Australian Federal Police Association (1996) 73 IR 155 (Boulton J, Polites, SDP and Simmonds, C) considered the matter and the Full Bench observed as follows:-

  ‘The Deputy President undertook an extensive review of the authorities in respect of the relationship between a police officer and the State which we do not propose to repeat in this decision. His Honour’s conclusions on those authorities are set out conveniently in the following passages:

  “However, it does not necessarily follow from above that a police officer may not at the same time be an employee for the purposes of the Act. That a police officer may be an employee is at least recognized in Enever’s case (Enever v The King) (1906) 3 CLR 969 at 975 per Griffiths CJ, 990 per O’Connor J; Fisher’s case (Fisher v Oldham Corporation)[1930] 2 KB 364 at 371 and three members for the High Court in the Perpetual Trustee case (Attorney-General (NSW) v Perpetual Trustee Company (Ltd)) (1952) 85 CLR 237 at 250-252 per Dixon J, 283 per Fullagar J, 265 per Williams J. It is not, in my view, denied by the Privy Council in its decision [(1955) 92 CLR 113] in the latter case. As indicated above, the Privy Council was concerned, not with whether or not a police officer was an employee but rather with whether the particular cause of action should be extended ‘beyond the limits to which it has been carried by binding authority or at least by authority long recognised as stating the law’ [(1955) 92 CLR 113, 129-30]. It is supported by the observations of Barwick CJ in Ramsay v Pigram (1968) 118 CLR 271 and Lee J in Griffiths v Haines [1984] 3 NSWLR 653. In Pense v Hemy (1973) WAR 40, the Court recognised that a police officer had both duties of office and duties arising under rules and regulations made by a Commissioner.

  Nor does there appear to be any justification for the proposition that a police officer cannot be both the holder of a public office and an employee. One is not, in my view, inconsistent with the other. In any event, the question is not whether there is any inconsistency – the real question in this case, as stated earlier, is whether the fact that a police officer exercises independent authorities precludes her/him from being an employee for the purposes of the Act.

  I am of the view that it does not. There is no doubt that a police officer performs duties that arise by virtue of the office she/he holds. There is equally no doubt that a police officer performs duties that arise under detailed rules, orders, regulations and instructions formulated by the various Commissioners of Police and that those Commissioners exercise wide powers in directing the work and the manner of the work so performed. I can comprehend no real or significant difference between the relationship of a police officer to the Crown and that of many other employees to their employers where it is either impossible, undesirable or impractical to direct or control the work or particular aspects of the work of the particular employee.

  In Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561, the High Court, in dealing with the position of a circus acrobat, stated (at 570):

  ‘… a false criterion is involved in the view that if, because the work to be done involves the exercise of a particular art or special skill or individual judgment or action, the other party could not in fact control or interfere in its performance, that shows that it is not a contract of service but an independent contract’.

  True it is that, in that case, the Court was concerned with whether or not the person in question was an employee or an independent contractor but, if the fact that ‘the work to be done involves the exercise of individual judgment’ does not show that a person performing that work is not an employee, in my view the same test can equally be applied in the case of a person whose work involves the exercise of an independent authority. The Court went on to say (at 571):

  ‘The duties to be performed may depend so much on special skill or knowledge or they may be so clearly identified or the necessity of the employee acting on his own responsibility may be so evident, that little room for direction or command in detail may exist.  But that is not the point. What matters is lawful authority to command so far as there is scope for it. And there must always be some room for it, if only in incidental or collateral matters’. (My emphasis)

  There seems to be, in the matter before the Commission, considerable evidence of the scope for the exercise of a lawful authority to command. It is clear from the rules, regulations, orders and instructions issued by the various Commissioners that police officers are directed and/or controlled to a significant extent in the performance of their duties notwithstanding the fact that, in respect to a substantial area of their work, they possess an independent authority to act and cannot be so directed. In my view, police officers are employees for the purposes of the Act.”

 (d) That the Full Bench in Australian Federal Police Association (op cit) observed or found as follows:-

  (i) That, on the evidence of the material before it as a practical matter, extensive powers are exercised over Australian Police Officers with respect to their work and the execution of their duties.

  (ii) That, in many respects, such officers are subject to direction and control which is characteristic of the employment relationship.

  (iii) That there are aspects of the engagement which are indicative of the employment relationship as well.

  (iv) That it is possible to refer to judgments in cases which would not preclude a police officer from being found to be an employee at common law, merely because the officer may exercise some independent authority as a holder of public office.

  (v) That police officers are employees, for the purposes of the Act, would seem, to use the words of Fullager J in Attorney-General for New South Wales v Perpetual Trustee Co Ltd (1952) 85 CLR 237 at 283, to be “more in accord with modern notions and the realities of human relationships today”, than a contrary conclusion.

  The Full Bench did not decide the matter conclusively, but observed that this Commission had appeared to exercise jurisdiction without challenge for some considerable time.

 (e) The Commissioner went on to observe that Senior Deputy President Williams had really found that Police Officers may well be in the situation that, when exercising their police powers, that is independent authority, the common law cases apply.  However, he observed that, when Police Officers are not applying police powers exercising independent authority and are performing what might be considered to be their ordinary administration work, that is duties arising from rules and regulations made by the Commissioner of Police, then they are subject to direction and control as is any other employee and the industrial laws would then apply.

 (f) The Commissioner observed that this concept may well explain the acceptance of jurisdiction in this Commission to provide industrial regulation for Police Officers, since the Commission made the first Police Award in 1927 (1928) 8 WAIG 418.

 (g) The Commissioner then went on to deal with the history of industrial matters involving Police Officers and police cadets being dealt with in this Commission and referred to Minister for Police and Commissioner of Police v Smith (1993) 73 WAIG 2311.

 (h)  The Commissioner then observed that there are provisions in the Police Act in Part IIA – Police Appeal Board which provided for rights of appeal and for the Appeal Board itself.

 (i) The Commissioner also observed that an oath of office, in itself, is not incompatible with an employment relationship.

 (j) The Commissioner then dealt with s.23, s.33E and s.8 of the Police Act and the Police Regulations 1972.

 (k) The Commissioner then turned to deal with whether the Commissioner of Police can use s.8 of the Police Act to remove officers or was he barred from doing so by the operation of s.23 of the Police Act, as the only method by which a police officer can be dismissed is through s.23.

 (l) The Commissioner observed that these questions were considered by the Supreme Court in Menner and Others v Robert Falconer, Commissioner of Police (Supreme Court Library No 970388) (“Menner’s Case”) and the Full Court dealt with these matters in R and Miller; Ex parte Falconer (WA Supreme Court Library No 980249b) (“Miller’s Case”).

  Anderson J, in Menner’s Case (op cit), observed that, when a member of the police service enters into an engagement by taking and subscribing to an oath, the engagement involves a concurrence between the officer and the Crown.

  The relationship established is that of master to servant, notwithstanding that a constable has specific powers and duties which he must execute as an independent responsibility, but, importantly, the engagement is unilateral in that the officer promises to serve as long as it pleases the Crown to employ him, there being no mutuality or reciprocity of contract or liability.  The officer is bound to serve, but the Crown is not obliged to retain him and may dismiss him at will.  This power to dismiss may be exercised at any time and for any reason or for no reason or for a mistaken reason.  Thus, a Police Officer has no security of employment.  His Honour said that, accepting that the power under s.8 of the Police Act authorises dismissal with or without notice and for any reason or for no reason, that he was not persuaded that an officer has the right to be heard before the power is exercised in relation to him.

  Such a contention assumes that the right is a right to dismiss for cause.  It is not, but to dismiss at pleasure and is therefore not subject to any condition or restriction.

  His Honour did, however, say that a decision under s.8 of the Police Act to suspend might be reviewable, if it were not made honestly or in bona fide pursuit of the purpose of the power.  S.8 of the Police Act, Anderson J found, confers on the Commissioner of Police the same power of suspension at pleasure as belongs to the Crown.  Thus, the intention of the section is to confer on the Commissioner the prerogative power of the Crown to suspend at pleasure.  The power, in that sense, is unqualified.

 (m) In Miller’s Case (op cit), Malcolm CJ concluded that the Commissioner of Police was not the Crown and his action to discharge could not be equated to termination by the Crown as an act done at will or at the pleasure of the Crown.  Ipp J also dealt with these matters, finding that the discretion is an open one of the kind referred to by Dixon J in Swan Hill Corporation v Bradbury (1937) 56 CLR 746 and Water Conservation and Irrigation Commissioner (New South Wales) v Browning (1947) 74 CLR 492.

20              The Commissioner was therefore obliged to ensure that, in dealing with s.8 of the Police Act, he read that section in conjunction with the disciplinary provisions in s.23 of the Police Act and the requirements of natural justice which are clearly imported into the disciplinary proceedings under that section.

21              The Commissioner concluded that the Commissioner of Police has the power under s.8 of the Police Act to deal with issues relating to the movement of police officers.  He therefore concluded, in the absence of authorities from the Supreme Court, that the Commissioner has the right to use s.8 but, when he does so, he must do so applying the rules of natural justice.

22              The Commissioner referred to the dicta of the Chief Justice in relation to s.23  of the Police Act and concluded that His Honour had intended that a review by an independent body on the merits was not available to an officer facing dismissal under s.8 of the Police Act.

23              The parties also had agreed to certain arrangements called the “Administrative (Appeal) Arrangements Section 8 of the Police Act 1892 and Industrial Relations Act 1979”.  This provides for a number of steps to be taken in the form of administrative procedures for application to the exercise of the respective powers of both the Minister of Police and the Commissioner of Police under s.8 of the Police Act.  The Commissioner held that he was entitled to express his findings as a declaration.

ISSUES AND CONCLUSIONS

 Ground 1

24              By Ground 1, the appellants complain that the Commissioner erred in law and acted in “excess of” jurisdiction in that the Commissioner purported to provide purely declaratory relief in terms of the orders made on 14 July 2000 in application No CR 81 of 2000, when there was no power in him nor requirement to do so.

25              The decision made consists solely of declarations with no orders.  The Commissioner made the decision as part of the purported exercise of his powers pursuant to s.44 of the Act.

26              The appellants’ complaint is that there was no power to make such declarations because:-

 (a) There was no jurisdiction conferred on the Commissioner by the Act to make declarations, as it were, in isolation.

 (b) S.26(1)(a) of the Act does not confer equitable jurisdiction upon the Commissioner because it is not a source of power or jurisdiction.

 (c) The Commission has no equitable jurisdiction and therefore can only grant declaratory relief where specifically empowered to do so under the act, or where it is “awarded in adjunct with substantive orders”.

27              A substantial number of authorities was cited.

28              For the WAPU, it was submitted that s.34 of the Act specifically confers a power to make declarations and that this declaration was properly made and within power.  There is, indeed, an express empowerment pursuant to s.34 of the Act which, indeed, enables the Commission to make its decision, as defined in s.7 of the Act, inter alia, as a declaration and, indeed, requires the Commission to make its decision in the form of an award, order or declaration.  (The power to make a declaration as to the interpretation of an award under s.46 of the Act is a specific and particular power of its own.)

29              It is trite to observe that s.26(1)(a) of the Act is not a head of power (see RRIA v ADSTE 68 WAIG 11 (IAC)).  That head of power, for the Commission’s purposes in this case, in relation to declarations, is contained in s.34, read with s.7 of the Act.  There is, therefore, on the face of it, a power to and a duty to make a decision in the form of a “declaration” on its own.

30              The definition of “decision” in s.7 of the Act is as follows:-

  ““decision” includes award, order, declaration or finding;”

31              S.34(1) of the Act reads as follows:-

  “34. Decision to be in form of award, order, or declaration

    (1) The decision of the Commission shall be in the form of an award, order, or declaration (my emphasis) and shall in every case be signed and delivered by the Commissioner constituting the Commission that heard the matter to which the decision relates or, in the case of a decision of the Commission in Court Session, shall be signed and delivered by the Senior Commissioner among the Commissioners constituting the Commission in Court Session.

    (2) When the members of the Commission in Court Session are divided in opinion on a question, the question shall be decided according to the decision of the majority of the members.

    (3) Proceedings before the President, the Full Bench, or the Commission shall not be impeached or held bad for want of form nor shall they be removable to any court by certiorari or otherwise.

    (4) Except as provided by this Act, no award, order, declaration, finding, or proceeding of the President, the Full Bench, or the Commission shall be liable to be challenged, appealed against, reviewed, quashed, or called in question by any court on any account whatsoever.”

32              In Metropolitan (Perth) Passenger Transport Trust v Gersdorf (1981) 61 WAIG 611 (IAC), Brinsden J, with whom Smith J agreed, decided that it was not competent for the Commission to make a declaration on its own, i.e. not complementary to a substantive order.

33              In RRIA v AWU (1987) 67 WAIG 320 (IAC) (“Acosta’s Case”), a declaration that the contemplated action of an employer to dismiss an employee was held, notwithstanding that the declaration stood alone and was not complementary to a substantive order, to be competent.  Brinsden J held that such an opinion was not inconsistent with what he had held in Metropolitan (Perth) Passenger Transport Trust v Gersdorf (IAC)(op cit) because, in Acosta’s Case (op cit), the making of a declaration in the terms sought and in which it was made, was to be the foundation for the consequent act of dismissal.  Olney J agreed with Brinsden J.  Kennedy J at page 325 held that a general power to make a declaration (as distinct from the particular power conferred by s.46 of the Act) was available, if it served the purpose of resolving a dispute.  Such a power, he observed, was to be used with care.

34              The Industrial Appeal Court in Marshall v Management Committee of the Geraldton Sexual Assault Referral Centre (1995) 75 WAIG 1501 at 1503 (IAC) did not decide the question.  In Coles Myer Ltd trading as K-Mart Discount Stores v SDA 72 WAIG 696, the Full Bench applied the decision in Acosta’s Case (op cit).

35              In Hutchinson v Cable Sands (WA) Pty Ltd 79 WAIG 951 (FB), the majority of the Full Bench, Sharkey P and Coleman CC, held, applying the authorities, that it was within power to make a declaration in isolation as the decision of the Commission.  Further, the law is now in this Commission, for those reasons, that such use of a declaration is competent.

36              In this case, the order was made within power because of the ratio in Acosta’s Case (op cit), the declaration settled rights and obligations in contemplation (in relation to the WAPU’s members) of future acts as well as current situations.  Alternatively, as Kennedy J observed, the declarations were used to settle a dispute and were within power, even though the declarations stood alone and were not complementary to other orders or declarations.  Further and perhaps more cogently, the declaration as contemplated by the dicta of Kennedy J in Acosta’s Case (op cit) were properly used in order to settle an ongoing dispute.  It was, in any event, not submitted with any force that the orders were not a valid exercise of discretion or appropriate, having regard to Kennedy J’s dicta in Acosta’s Case (op cit).

37              The declarations made, I am satisfied for those reasons and on those authorities, were clearly made validly and within power.  In any event, if they were not, the proper order would be to quash the decision appealed against, and then there would be no obstacle to the matter being determined by competent orders by the Commission at first instance.

38              However, all of those observations are subject to whether the Commissioner had the jurisdiction to hear and determine the matter at all, a point raised by Ground 3.  Subject to that observation, I do not find Ground 1 made out.

Ground 2

39              The complaint in relation to Ground 2 is that the Commissioner erred in law and acted in excess of jurisdiction in declaring that, in using the power of removal vested in him under s.8 of the Police Act, the Commissioner of Police is obliged to ensure that natural justice is afforded to any Police Officer, the subject of such power is the natural justice available to a Police Officer if he was the subject of proceedings under s.23 and s.33E of the Police Act.

40              It is necessary, in the course of considering this ground and the submissions relating thereto, to canvass a number of sections of the Police Act.  It will be necessary to consider some of those sections further in relation to Ground 3 of the Grounds of Appeal.

41              For convenience, I will now refer to those sections and reproduce the same or relevant extracts where appropriate.

42              By virtue of s.5 of the Police Act, the Governor may appoint:-

   “a fit and proper person to be Commissioner of Police throughout the said State, ....

  and every Commissioner of Police shall be charged and vested with the general control and management of the Police Force of the said State, and also of any special Constables....”

43              S.6 of the Police Act empowers the Governor to appoint (my emphasis) commissioned officers under his hand:-

  “.... and such commissioned officers shall be subject to the control and discipline of the Commissioner of Police, and shall be respectively charged with the government and superintendence of such portion of the Police Force as such Commissioner may from time to time direct.”

44              S.7 of the Police Act provides for the appointment (my emphasis) of non-commissioned officers and constables by the Commissioner of Police, subject however to the approval of the Governor:-

  “.... and such non‑commissioned officers and constables shall have all such powers and privileges, and be liable to all such duties and obligations as any constable duly appointed now or hereafter may have, or be liable to, either by the common law, or by virtue of any statute law now or hereafter to be in force in the said State.”

45              S.9 of the Police Act empowers the Commissioner of Police, with the approval of the Minister, to frame rules, orders and regulations “for the general government of the members of the Police Force and of police cadets”, including for their “control, management, and discipline”.

46              S.10 of the Police Act reads as follows:-

   “No person shall be capable of holding any office (my emphasis), or appointment in the Police Force, or of acting in any way therein, until he shall have subscribed the following engagement, namely — 

   I, A.B., engage and promise that I will well and truly serve our Sovereign Lady the Queen, in the office of [Commissioner of Police, inspector, sub‑inspector, or other officer, or constable, as the case may be], without favour or affection, malice, or illwill, until I am legally discharged; that I will see and cause Her Majesty’s peace to be kept and preserved, and that I will prevent, to the best of my power, all offences against the same; and that, while I shall continue to hold the said office, I will, to the best of my skill and knowledge, discharge all the duties thereof faithfully according to law.

  And the said engagement shall be subscribed in the presence of and attested by a Justice or commissioned officer of the force.”

 All Police Officers are required by the Police Act to subscribe to the above engagement.

47              S.11 of the Police Act prescribes as follows:-

  “Every person, on subscribing such engagement, shall be thereby bound to serve Her Majesty as a member of the Police Force, at the current rate of pay for such member, and until legally discharged, from the day on which such engagement shall have been subscribed: Provided that no such engagement shall be set aside for the want of reciprocity: Provided further, that such engagement may be cancelled at any time by the lawful discharge, dismissal, or removal from office of any such person, or by the resignation of any such person being accepted by the Commissioner of Police.”

48              S.12 of the Police Act prescribes as follows:-

  “No non‑commissioned officer or constable shall be at liberty to resign his office, or to withdraw himself from the duties thereof, notwithstanding the period of his engagement shall have expired, unless expressly authorized in writing to do so by the Commissioner of Police, or unless he shall have given to such Commissioner 3 calendar months’ notice of his intention so to resign or withdraw, if stationed north of the 18th parallel of south latitude or one calendar month’s notice if stationed elsewhere, and every member who shall so resign or withdraw himself without such leave or notice shall, upon conviction thereof by any 2 or more Justices, be liable to forfeit all arrears of pay then due to him, and to a penalty of not more than $50, or may be committed to prison for a period not exceeding 14 days.”

49              Part II of the Police Act, which commences with s.9 and includes s.10 to s.33 inclusive, deals with duties, regulations and discipline of the Police Force.  S.8 is in Part I, a different part of that Act.  S.23 prescribes the manner in which disciplinary measures are to be taken.  S.33E prescribes a right of appeal to a member of the Police Force or a police cadet who has been convicted, upon a summary investigation, by the Commissioner or other officer appointed by the Commissioner, of an offence against the discipline of the Police Force.

50              The appeal lies against the decision and punishment, if the person concerned is punished, i.e. discharged or dismissed from the Police Force, suspended from duty, reduced in rank, fined or transferred by way of punishment.  The leading authority in this area and one which binds this Commission is the reasons for judgment of the Full Court in Re an application for Certiorari; Parker & Others v Miller and Others (Supreme Court Library No 980249) (“Parker’s Case”) per Malcolm CJ and Ipp J (Franklyn J dissenting).  The following can be extracted from those reasons for judgment:-

 1. Save for minor amendments by s.3 of the Police Act Amendment Act 1969,  s.8 of the Police Act remains in the form in which it was enacted in 1892 (per Malcolm CJ at page 55 of his views).

 2. The statutory power of dismissal conferred on the Commissioner of Police by s.8 was distinct from resort to the Crown prerogative and could not be equated with termination by the Commissioner as an act done at the will or pleasure of the Crown.  The power is just that, a statutory power.

 3. S.8 must be read in the context of the disciplinary provisions of s.23 of the Police Act and the requirements of natural justice which are clearly imported into disciplinary proceedings under that section.

 4. That exercise of power is reviewable, its width does not render the same power exercisable under a royal prerogative.

 5. S.8 is part of a scheme incorporated in the Police Act.

 6. Since the Commissioner of Police is not the Crown, the discharging (or removal/suspension)  of an officer cannot be seen as an act done at the will or at the pleasure of the Crown.

 7. Accordingly, it was wrong to do so without affording natural justice or procedural fairness.

51              In my opinion, the Commissioner at first instance was right, subject of course to the question of jurisdiction raised by Ground 3, in finding that there was a right in the officers concerned to be accorded natural justice.  (That was the view of all three judges in Parker’s Case (op cit).)

52              In my opinion, the dicta of Gibbs CJ at page 353 and Wilson J at page 361 in O'Rourke v Miller (1985) 156 CLR 342 apply and are the correct prescription of what constitutes procedural fairness, for the purposes of the Police Act.  I respectfully adopt what Gibbs CJ said, at page 353, or at least s.8 thereof, where suspension and removal, and not the distinctly different act of dismissal or other sanctions is occurring.  There is nothing to distinguish the approach in O’Rourke v Miller (HC)(op cit) as the proper approach:-

  “In the present case the Chief Commissioner was not required to hold a formal hearing or to be satisfied beyond reasonable doubt that the appellant had been guilty of the misconduct alleged before he reached a decision to terminate the appellant’s provisional appointment.  It would be enough if the Chief Commissioner, having given the appellant a fair opportunity to be heard, considered in good faith that the appellant was not fit to occupy the office of constable or that there was a real doubt about his suitability.  If in fact the appellant had been charged before the Police Discipline Board and that Board had given him the benefit of the doubt because it was faced with a conflict of testimony between the two girls and the two policemen, it would still have been open to the Chief Commissioner to terminate the appellant’s appointment.  It is of great importance to the public that persons whose conduct or character is doubtful should be kept out of the police force and the system of probationary appointments is one means of achieving that end.  The Chief Commissioner, in exercising his power under reg. 212 to terminate the appointment of a probationary constable, has, to use the words of Murphy J. in the Full Court of the Supreme Court, “not only the power but also the responsibility to weed out persons concerning whom he entertains any reasonable doubts”.”

53              I adopt, too, what Wilson J said, at page 360-361, as to the nature of the procedural fairness to be afforded.  I think that such an approach is consonant, too, insofar as it needs to be with the well accepted approaches in the industrial law:-

  “The argument fails at the outset because the premises on which it is based cannot be sustained.  First, his appointment was not terminated because he was found to have committed an offence.  The relevant question was not whether he was guilty of an offence but whether on all the information available to the Deputy Commissioner he possessed the qualifications which rendered him suitable for appointment.  The appellant had no right to have the judgment of a Police Discipline Board based as it would be on a strict onus of proof in relation to a particular incident substituted for the experienced judgment of his suitability by the Deputy Commissioner.  Nor did the mandates of procedural fairness oblige the Deputy Commissioner to subject the civilian complainants to the embarrassment and stress of an inquiry in which they would confront the appellant and submit to cross-examination on his behalf.  The argument proceeds on a misconception of the position of a probationary constable.  He has no right to confirmation merely because he passes the retention examination and receives a favourable report from his superiors.  He has no right beyond the right to expect a bona fide decision by the Chief Commissioner on his suitability to continue as a member of the police force with the proviso that if any material on which that decision might be based is adverse to him then the substance of that material will be made known to him and an opportunity given to him to make his response:  see Chief Constable of the North Wales Police v. Evans (17).  The record here shows that the appellant was interviewed over a period of months by a number of senior police officers. He was fully informed of the conduct complained of and given every opportunity to make his response, which he did.  I agree with the conclusion of the Full Court that the procedures followed satisfied the dictates of fairness.”

54              (See also the application of those dicta in R v Commissioner of Police; Ex parte Ramsey [1992] 2 Qd R 171, applied by Malcolm CJ and Ipp J in Parker’s Case (op cit).)

55              I am of opinion, for those reasons, that, subject to my findings as to Ground 3 and/or Ground 4, that ground of appeal is not made out.

Ground 3

56              This is the fundamental ground of appeal.  By Ground 3, the appellants complained that the Commissioner erred in law in finding that he had jurisdiction to deal with the application before him because there was no “industrial matter”, as defined in s.7 of the Act.

57              It is trite to observe that the Commissioner had no jurisdiction in relation to the matter before him, unless it was an “industrial matter”, as defined.  An “industrial matter” is defined in s.7 of the Act as follows:-

  ““industrial matter” means, subject to section 7C, any matter affecting or relating to the work, privileges, rights, or duties of employers or employees in any industry or of any employer or employee therein and, without limiting the generality of that meaning, includes any matter relating to — 

  (a) the wages, salaries, allowances, or other remuneration of employees or the prices to be paid in respect of their employment;

  (b) the hours of employment, leave of absence, sex, age, qualification, or status of employees and the mode, terms, and conditions of employment including conditions which are to take effect after the termination of employment;

  (c) the employment of children or young persons, or of any person or class of persons, in any industry, or the dismissal of or refusal to employ any person or class of persons therein;

  (d) any established custom or usage of any industry, either generally or in the particular locality affected;

  (e) the privileges, rights, or duties of any organization or association or any officer or member thereof in or in respect of any industry;

  (f) in respect of apprentices or industrial trainees — 

   (i) their wage rates; and

   (ii) subject to the Industrial Training Act 1975— 

    (I) their other conditions of employment; and

    (II) the rights, duties, and liabilities of the parties to any agreement of apprenticeship or industrial training agreement;

  [(g) and (h) deleted]

  (i) any matter, whether falling within the preceding part of this interpretation or not, where — 

   (i) an organization of employees and an employer agree that it is desirable for the matter to be dealt with as if it were an industrial matter; and

   (ii) the Commission is of the opinion that the objects of this Act would be furthered if the matter were dealt with as an industrial matter;

  but does not include — 

  (j) compulsion to join an organization of employees to obtain or hold employment;

  (k) preference of employment at the time of, or during, employment by reason of being or not being a member of an organization of employees;

  (l) non­-employment by reason of being or not being a member of an organization of employees; or

  (m) any matter relating to the matters described in paragraph (j), (k) or (l)”

58              By the ground of appeal, the appellants complain that an industrial matter can only arise under the Act “in connection with an employer and employee”.  Further, the appellants go on to assert that the appellants, the subject of the application, are not in the relationship of employer to the Police Officers because they are in the service of the Crown. 

59              An “employer” and an “employee” are defined by s.7 of the Act.

60              It is noteworthy that jurisdiction is not conferred on the Commission with respect to a dispute concerning an industrial matter, but is conferred in respect of an industrial matter (see RGC Mineral Sands Ltd and Another v CMETSWU 80 WAIG 2437 at 2443 (IAC) per Parker J, with whom Kennedy J and Scott J agreed).

61              There is ample authority in the Commission that an industrial matter is one which affects or relates to the work, privileges, rights or duties of employees or employers (as defined) in an industry.

62              It is quite clear, from the plain words of the definition of “employee”, that a person is an employee who is party to a contract of service.  Definition (a) makes that clear.  It is also clear that an “employee” is a person whose usual status is that of employee, i.e. employee as otherwise defined in s.7 of the Act (see definitions (a), (c) and (d) of “employee”).  Thus, a person employed as a canvasser and remunerated by commission is an employee (see definition (c)).  Further, an employee, as defined, and the subject of a contract of service, who is the lessee of vehicles, tools, etc. (I paraphrase, is an employee).  Obviously, a Police Officer is not a canvasser and not a person who is the lessee of tools or vehicles, but is otherwise an “employee”.

63              Quite plainly, a public officer or an officer of the Crown, in the proper sense of that word, who is not an “employee”, as defined; nor does a person so appointed enter into a contract of employment or service; nor does such an officer have an employer.

64              An “industry” is defined by s.7 of the Act to mean:-

  ““industry” includes each of the following — 

  (a) any business, trade, manufacture, undertaking, or calling of employers;

  (b) the exercise and performance of the functions, powers, and duties of the Crown and any Minister of the Crown, or any public authority;

  (c) any calling, service, employment, handicraft, or occupation or vocation of employees,

  whether or not, apart from this Act, it is, or is considered to be, industry or of an industrial nature, and also includes — 

  (d) a branch of an industry or a group of industries”

65              The ambit of the definition of “industrial matter” is canvassed in an authoritative manner in RGC Mineral Sands Ltd and Another v CMETSWU (IAC)(op cit)  The question is whether commissioned officers, non-commissioned officers and constables are employees and the appellants are employers, and whether they are employers and employees in an “industry”. Conditional facts which constitute ingredients of an industrial matter, as defined, depend, to a large extent, on whether a person is an employer and/or employee, as defined.

66              First, there is no evidence of any express written or oral contract of service.  Commissioned officers are appointed by the Governor, and are subject to the control and discipline of the Commissioner of Police who, himself, is appointed by the Governor.  They are appointed by operation of the provisions of the Police Act.  There was no submission in support of the proposition that the Minister was an employer and no submission to that effect.  There is nothing in the Police Act or otherwise before the Full Bench to establish that the Minister employs Police Officers.  In any event, the approval of the appointment of an officer (whether Police Officers or not) or the appointment of an officer by or at the behest of the Minister, does not render that person the Minister’s employee, as Police Officers, at common law.

67              Non-commissioned officers are appointed by the Commissioner of Police, the officer vested with the general control and management of the Police Force (see s.5, s.6 and s.7 of the Police Act supra) pursuant to the provisions of the Police Act.

68              There is no evidence or even any submission of conviction that they enter into a contract of service, or that it would be competent for them to do so.  Ipso facto, if they are “officers”, they cannot competently enter a binding contract of service.

69              Thus, all members of the Police Force become members of that force because the Governor, representing the Crown, and the Commissioner, an officer appointed by the Governor, pursuant to the Police Act, appoint them pursuant to the statute.

70              Further, no person is capable of holding any office or appointment or acting in any way under the Police Act until he has “subscribed to” the form of engagement reproduced above in s.10 of the Police Act.

71              The engagement is an engagement to service the Queen, to keep Her Majesty’s peace, to prevent crime, etc “in the office of (rank of officer)”.  The engagement, too, is to well and truly serve the Queen “until I am legally discharged”.  That phrase connotes a termination of service which is not in the final ability of the officer to decide.

72              Again, s.11 of the Police Act adds to that by prescribing that every person, on subscribing such engagement, shall “be clearly bound to serve Her Majesty” as a member of the Police Force until legally discharged. 

73              There is no contract to be terminated at the instance of employer or employee.  Indeed, no such engagement is permitted to be set aside “by want of reciprocity” (see s.11 of the Police Act).  There is no mutuality of reciprocity of contract and obligation (see Menner’s Case (op cit)).

74              However, more significantly, no non-commissioned officer or constable shall be at liberty to resign his office or to withdraw himself from the duties of that office, even though the period of his engagement has expired, without the leave of the Commissioner of Police or proper notice of resignation.  It is to be noted that any resignation must be accepted by the Commissioner of Police.

75              The relevant relationship between the Commissioner and Police Officers does not arise by virtue of a contract of service or employment.  There is no contract of service.  The relationship of a Police Officer is with the Crown.  The force of which he is a member and a constable is under the general control and management of an officer appointed by the Governor, for that purpose, the Commissioner of Police.  Only the Governor may remove from office commissioned officers (see s.8 of the Police Act) and the Commissioner of Police, subject to the Minister’s approval, may remove any non-commissioned officer or constable.

76              All of these statutory features indicate the nature of the office of Police Officer.  She/he is a member of a force.  The Police Force is a regular service of the Crown.  It is a disciplined force of the Crown (see Fletcher v Nott (1938) 60 CLR 55 at 77; see also Enever v The King (1906) 3 CLR 969 at 982; New South Wales v Perpetual Trustee Company (Limited) (1956) 92 CLR 113 at 120-121; Attorney-General (NSW) v Perpetual Trustee Company (Ltd) (HC)(op cit) at 254-255 and 303; Pense v Hemy (FC) [1973] WAR 40 at 42).

77              As these authorities say and the terms of the Act provides, and as Mr Tannin, on behalf of the appellants, correctly submitted, a Police Officer’s service under the Police Act is not dependent upon a contract but upon an engagement prescribed and having a prescribed statutory effect.  I follow those authorities because they apply and, indeed, I am bound by them.  The relationship between the Crown and the members of the Police Force is governed by statute and regulation.  The statute binds them in their occupation and discharge of office.  The words “engagement”, “oaths of office”, and the word “office” are significantly used throughout the relevant sections.

78              To support and illustrate that view, I make the following observations.

79              Of course, at common law, a constable or Police Officer was regarded as the holder of a public office and was regarded as exercising an original and not a delegated authority.  Her/his acts were and are of a public nature done by a public officer (see Enever v The King(HC)(op cit) and Attorney-General (NSW) v Perpetual Trustee Company (Ltd)(HC)(op cit) at page 237).

80              In Attorney-General (NSW) v Perpetual Trustee Company (Ltd)(HC)(op cit) at page 273, Webb J said:-

 “A police constable has always been an arm of the law and never a servant employed to do a masters bidding on all occasions and in any circumstances.  His authority is original and not derived from a master or exercised on behalf of one, but is exercised on behalf of the public.”

 (See also per Kitto J at page 299.)

81              See also Pense v Hemy (op cit) at page 42, where Burt CJ said:-

  “In other words the power presupposes and if exercised the product of its exercise presupposes a body of law, independently existing concerning the powers, privileges, duties and responsibilities of the constable .... the power given by the section was intended merely to deal with the disciplinary control of constables, leaving the nature of their powers and duties and the responsibility of their actions to be governed by the common law as modified by statutes, if any, dealing with that subject.”

82              Konrad v Victoria Police and Another (1999) 46 AILR 1610 is not authority for the proposition that, at common law and/or the purposes of this Act, a Police Officer is an employee.  It is authority for the proposition that, for the purposes of the Workplace Relations Act 1996 (Cth), a Police Officer is an employee; nor, because the reasoning adopted in that case does not accord with the authorities, my reasoning based on them and the Police Act above, do I, with great respect, agree with the view taken by Williams DP in Re: Australian Federal Police Association (No. 2) (op cit) at pages 147-149, where the Deputy President held that State Police Officers, including those in this State, are employees (see also on appeal Re Australian Federal Police Association (op cit).

83              In any event, the learned Deputy President was making the finding which he made on the definition of “worker” in the Workplace Relations Act 1996 (Cth).

84              That a Police Officer is not an employee is supported by P W Nichols Esq. in his erudite work “Police Officers of Western Australia” (Butterworths) 1979, on pages 9-10, where he notes, in relation to s.11 of the Police Act, that the engagement preserved in s.11 is an interesting historical survival, recalling the link between the constables appointed in England by Justices of the Peace.  He also observes that, because of a constable’s status as a Crown officer, he cannot be a “servant”.

85              Mr Graham F Smith, in his work “Public Employment Law” (Butterworths) at pages 48-49, quotes with approval the view of Mr D C Thompson in his article “Employment and Law in the New South Wales Police Force” (1963) 4 Sydney Law Review, pages 404-415, especially page 409, that, although the common law status of the constable continues to be of prime importance, the modern Police Force is essentially a creature of statute.  Nowhere, however, does he suggest that a Police Officer is not an officer of the Crown.  Indeed, by recognising the common law status, he recognises that to be the case.

86              On a fair reading, the Police Act, its regulations and orders, as I have observed, still enshrine the Police Officer as an officer responsible to the Crown.

87              Indeed, as Ipp J observed in Parker’s Case (op cit), acting and applying the ratio in Balog and Another v Independent Commission Against Corruption (1990) 169 CLR 625 at pages 635-636 by the whole Court that, where two alternative constructions are open, that which is consonant with the common law is to be preferred, found that Police Officers were officers of the Crown.

88              In my opinion, that, with respect, is what the Police Act provides and recognises and I follow His Honour’s finding.

89              Moreover, it cannot be validly argued that a course of conduct over many years where, as submitted, as if Police Officers were employees, awards and later enterprise bargaining agreements were made or entered into in relation to the working conditions of Police Officers, confers jurisdiction on the Commission.

90              Police are servants of no-one but the law itself (see Aspects of Public Sector Employment by G J McCarry (The Law Book Co Limited 1988), page 214, citing R v Commissioner of Police of the Metropolis; Ex parte Blackburn [1968] 2 QB 118 at 136 per Lord Denning MR and at 138 per Salmon LJ.

91              Further, although Mr Momber for the WAPU submitted otherwise, relying on Walton Stores (Interstate) Ltd v Maher and Another 164 CLR at 387, estoppel cannot operate in the face of the statute to confer jurisdiction or otherwise.  If it can do so, then the Full Bench was taken to no authority to that effect.

92              As Isaacs J said, too, in Meyers v Casey [1913] 17 CLR 90 at 117:-

  It is true no consent of parties can supplement the law of the land so as to give a tribunal any jurisdiction to dispense the King’s justice, which the law does not itself confer.  The law provides the exact measure of that jurisdiction, and no private arrangement can add to it or take from it.”

93              Jurisdiction cannot be conferred by agreement between the parties (see SGS Australia Pty Ltd v Taylor 73 WAIG 1760) where it does not exist.

94              Accordingly, because Police Officers are officers, they are not employees.  Because they are engaged and appointed as officers and not parties to a contract of employment, they are not employees.  Because they have no employer, they are not employees.  Such, in my opinion, is palpably the position.  In any event, the Full Bench is bound to so find by the authority of the High Court and of the Full Court of this State in the authorities to which I have referred in paragraphs 76, 79, 80, 81, 87 and 90 in particular hereof.

95              Further, for the same reason, the Commissioner of Police is not the employer of Police Officers.  It was, as I have observed, not contended that the Minister is their employer.  They are not, therefore, persons employed by an employer to do work for hire or reward (see definition (a) of “employee” in s.7 of the Act).  Further, it was not contended that they came within the definition of employee definitions (b), (c) and (d) in s.7 of the Act, nor is there any evidence that they were.  Police Officers are indubitably officers of the Crown and not employees, for those reasons, and I so hold.

96              Further, since Police Officers are not “employees”, as defined in s.7 of the Act, but officers, and the Commissioner of Police and the Minister of Police are not “employers”, as defined in s.7 of the Act and, within the meaning of “employer”, as a person, corporation, etc. who employs employees pursuant to a contract of employment, there was no “matter affecting or relating to the work privileges, rights or duties of employers or employees in any industry or of any employer or employee therein”.

97              Accordingly, there was no “industrial matter”, as defined in s.7 of the Act, and jurisdiction could not be conferred on the Commission by s.23(1) of the Act, which reads as follows:-

  “Subject to this Act, the Commission has cognizance of and authority to enquire into and deal with any industrial matter.”

98              I should add that I am conscious that an existing contract of employment is not a sine qua non to the existence of an “industrial matter”, as defined, (see RGC Mineral Sands Ltd and Another v CMETSWU 80 WAIG 2437 (IAC).  This was a case which involved determining whether a class of persons were employees or officers of the Crown.

99              The fact that there is alleged to be disputation between the parties to this appeal, if it be the case, is not sufficient to constitute an industrial matter, it is trite to observe.  As I have already observed, jurisdiction depends on the existence of an industrial matter pursuant to s.23 of the Act, not of “an industrial dispute” or a “dispute relating to an industrial matter”.

100           There was no jurisdiction in the Commission to hear and determine the application because it could not have cognisance of and authority to enquire into and deal with a matter which was not an “industrial matter”, as defined (see s.23 of the Act).

Ground 4

101           By this ground, the appellants complain that the Commissioner erred in law considering affidavit and other material which were not in evidence in the proceedings (see pages 43-44(AB)), as the Commissioner referred to affidavits which were not tendered or admitted in evidence in the proceedings.

102           The Commissioner, having canvassed some of the content of the affidavits, observed “No positive findings can be made on these claims”.  However, he observed and found that the “investigation process” was seriously flawed, and not based on the Commission’s findings in an unreported case which the Commissioner identified, without providing a citation, as O’Reilly v Commissioner of Police (unreported).

103           Certainly, in referring to the evidence, the Commissioner erred in law (see Swarbrick v Swarbrick [1964] WAR 106 per Wolff CJ).  However, it does not seem to have been material to his decision.

104           Although it was not argued however, the reference to the evidence constitutes a breach of s.26(3) of the Act and, were it a ground of appeal, should, in my opinion, be upheld because a breach of s.26(3) of the Act, in my opinion, renders the proceedings invalid (see, generally, Como Investments Pty Ltd v FLAIEU and Others 69 WAIG 1004 (IAC) and Stamco Pty Ltd and Others v SDA 72 WAIG 1279).  That point was not, however, squarely argued.

105           However, if the appeal were upheld on the ground as framed, the proper course would be to suspend the decision and remit the matter to another Commissioner to be heard.  In the light of my findings as to Ground 3, it is not significant.

FINALLY

106           There was no jurisdiction in the Commission to entertain the application at first instance.  Accordingly, the decision was incompetent and was and is a nullity.

107           I have considered all of the material and submissions.  I would, for those reasons, quash the decision at first instance, it being a nullity, having been made without jurisdiction.

SENIOR COMMISSIONER G L FIELDING:

108           The background to this appeal is set out in the reasons of the President. 

109           The Industrial Relations Commission is a creature of statute.  It has no inherent jurisdiction.  It therefore has only the jurisdiction and powers given to it by statute.  (see:  The Registrar of the Western Australian Industrial Relations Commission v The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Workers Union of Australia, Engineering and Electrical Division WA Branch (1999) 79 WAIG 2975 at 2976).

110           Section 34 of the Industrial Relations Act 1979, by which the Commission is established, clearly authorises the Commission in the exercise of its jurisdiction to make a declaration.  The extent of that power has been the subject of conflicting authority at least until recent times.  (see:  Hutchinson v Cable Sands (WA) Pty Ltd (1999) 79 WAIG 951 at 953).  Accepting for these purposes that in an appropriate case the Commission may make a declaration only as a means of resolving an industrial matter, this is not such a case.  The declaration was not so much concerned with the merits of the industrial matter before the Commission, assuming the matter in question to be an industrial matter, but simply a declaration of the existing rights of the parties said to flow directly from the provisions of the Police Act 1892.  The Commission is not a superior court with supervisory jurisdiction over the laws of Western Australia, and in particular those prescribed under the Police Act 1892, nor does it have general equitable jurisdiction enabling it to grant declaratory relief in the form of a declaration of right of the kind made on this occasion.  In my view it is one thing to make a declaration regarding the merits or otherwise of some industrial matter but quite another to make what is in effect a bald declaration of right with respect to the provisions of the Police Act 1892, or indeed any other legislation in this State. 

111           If, contrary to my view, the Commission were empowered to make a declaration of the kind now in question the appeal should still succeed on the ground that the learned Commissioner erred in his interpretation of the Police Act 1892.  With all respect to the learned Commissioner, there is no warrant to conclude, as he did, that the provisions of s 8 are governed by the provisions of s 23 and s 33E of the Act.  Section 8 provides a vehicle for the Governor, and in some cases the Commissioner of Police with the approval of the Minister, to remove members of the Police Force from the Force.  That is an act which is quite separate and distinct from the act authorised by s 23.  That section authorises the Commissioner to charge a member of the Police Force with “an offence against the discipline of the Police Force”.  Where a member has been found guilty of such an offence s 33E of the Act gives the member a right of appeal to the Police Appeal Board.  A person convicted of such an offence is liable to be discharged or dismissed from the Force simply by order of the Commissioner of Police.  Not only is it self‑evident that that action is quite different from the act of removal as envisaged by s 8, but it is evident from the express provisions of the Act.  Section 11 provides that membership of the Police Force is to continue until “lawful discharge, dismissal, or removal” from the Police Force.  Clearly the legislation envisages a distinction between discharge and dismissal under s 23 and removal under s 8.  This is consistent with the fact that s 8 appears in that Part of the Act dealing with the appointment of members of the Police Force, whereas s 23 and s 33E appear in that Part of the Act dealing with the regulation, duties and discipline of the Force.

112           As counsel for the Appellant contends, in effect, s 8 is a management tool.  It is not a disciplinary provision but one designed to ensure that the integrity of the Police Force is not undermined.  As was pointed out in Menner & Ors v Falconer, Commissioner of Police (1997) 74 IR 472, this section is not a punitive provision.  Instead, as mentioned in Minister for Police and Commissioner for Police v Smith (1993) 73 WAIG 2311, the provision is designed to maintain proper standards of conduct by members of the Police Force and to protect the reputation of the Force rather than to extract retribution.  (see too:  Hardcastle v Commissioner of Australian Federal Police and Another (1984) 53 ALR 593 at 597.) 

113           The learned Commissioner suggested that his conclusion was supported by the observations of the Supreme Court in Parker v Miller and Ors, unreported; SCt of WA; Library No 980249S; 8 May 1998, and in particular the observations of the Chief Justice, that

 “s 8 must be read in the context of the disciplinary provisions in s 23 of the Act and the requirements of natural justice which are clearly imported into disciplinary proceedings under that section.” 

114           In my view it is reading too much into the decision in that case, and in particular the decision of the Chief Justice, to suggest, as did the learned Commissioner, that in utilising the powers vested in him by s 8 of the Police Act 1892, the Commissioner of Police is not only obliged to ensure natural justice is applied to members of the Police Force affected by the decision but that

 “natural justice in that sense is the natural justice available to a police officer [as] if he was subject to proceedings under s 23 and s 33E of the Police Act 1892.” 

115           In my opinion, the import of that decision, so far as is relevant for these purposes, is that having regard to the provisions of s 23 and s 33E of the Police Act 1982 the powers given to the Commissioner of Police by s 8 of the Act cannot be exercised without regard for the principles of natural justice.  Were it otherwise the strict regime established by s 23 and s 33E, which is clearly designed to ensure that natural justice is afforded to members of the Police Force as a condition precedent to discharge or dismissal, could be avoided by the Commissioner of Police utilising the power under s 8.  As the Chief Justice pointed out, that result is too strange to contemplate.  That facet together with consideration of the decided cases in other jurisdictions meant that the exercise of such a power carried with it an obligation to ensure that natural justice was afforded to the members of the Police Force affected by the decision.  However, that is not to say that the Commissioner of Police was obliged to go through the same or much the same process as that stipulated in s 23 and s 33E of the Police Act 1892.  Indeed, that would be impossible.  In the case of the power under s 23 it is conditional upon the conviction of a breach of discipline which in turn requires that a formal “charge” must first be laid by the Commissioner of Police.  The Commissioner of Police cannot manufacture a charge if none exists.  He may nonetheless be concerned enough about the conduct of the member of the Police Force to want him removed from the Force.  The decided authorities, including the decisions in Menner and in Parker, make it clear, if there was ever any doubt, that that would be a legitimate basis for utilising the power under s 8.  Moreover, the right of appeal under s 33E is dependent on there being a conviction for a breach of discipline.  The right of appeal therefore has no relevance to the exercise of the power under s 8.  There is no other appellate process prescribed under the Act.  In the circumstances, it might legitimately be inferred that Parliament did not intend there to be an appeal in the case where persons were removed from the Police Force under s 8 of the Police Act 1892.  It cannot be the case that because there is no right of appeal the Commissioner of Police cannot lawfully exercise the powers given by s 8.  To hold otherwise is, in effect, to redraft the Act.  Counsel for the Appellant quite properly conceded that the powers vested in the Commissioner of Police under s 8 of the Police Act 1892 were constrained by the rules of natural justice.  Natural justice can take many forms.  The right of appeal is not a necessary ingredient of natural justice.

116           My view of grounds 1 and 2 of the appeal renders it unnecessary to consider the other grounds of appeal.  Much of the argument in support of the appeal concerned ground 3; that is, that the matter was not properly before the Commission, it not being an “industrial matter” by reason of the fact that members of the Police Force could not be considered properly as “employees” for the purposes of the Industrial Relations Act 1979.  In the circumstances I feel bound to make some observations regarding that issue. 

117           There is considerable decided authority, which if not binding on this Commission should be taken to be highly persuasive, to the effect that members of the Police Force in this State are not employees, at least at common law.  In that event, having regard for the definition of “employee” in the Industrial Relations Act 1979, which essentially replicates the common law, a good case can be made that members of the Police Force are not employees for the purposes of that Act.

118           The decision of the High Court in Enever v The King (1906) 3 CLR 969, the decision of the Privy Council in Attorney‑General for New South Wales v Perpetual Trustee Company (Ltd) (1955) 92 CLR 113, and the decision of the Supreme Court in this State in Pense v Hemy (1973) WALR 40 all support the position that police officers are not employees.  There are numerous other cases, many of which are referred to in the decision of the Australian Industrial Relations Commission in Re Australian Federal Police Association (No 2) (1993) 51 IR 122, to which the learned Commissioner referred.  Although in that case members of the various State Police Forces, including the Western Australia Police Force, were held to be employees for the purposes of the Industrial Relations Act 1988 (Cth) subsequent decisions of other tribunals have upheld the traditional view that members of a Police Force, not being employees at common law, do not fall within the scope of industrial relations legislation.  That was held to be the case in respect of a member of the Western Australia Police Force by the Industrial Relations Court of Australia in Ferguson v Commissioner of Police (1997) 72 IR 145).  Furthermore, a Full Bench of the Australian Industrial Relations Commission in reviewing the decision of Williams DP in Re Australian Federal Police Association (No 2) (supra) acknowledged that “there is nothing in the Police Act 1892 (WA) which would seem to alter the common law position” that members of the Police Force are not employees, although the Full Bench concluded that because there had been an “apparent acceptance of the jurisdiction of the WAIRC in relation to police” they should be taken as employees for the purposes of that Act.  (see:  Re Australian Federal Police Association (1997) 73 IR 155 at 159 and at 160). 

119           It is undeniably the case that for many years without question the Western Australian Police Union of Workers, successive Commissioners of Police, and seemingly successive Ministers for Police have been content to act as though the Western Australian Industrial Relations Commission had jurisdiction over what would normally be regarded as industrial matters affecting the Police Force in this State.  That reasonably carried with it the implication that members of the Police Force were employees, at least for the purposes of the Industrial Relations Act 1979.  Any doubt as to that would seem to have been put aside with the registration of the current industrial agreement entitled the West Australian Police Service Industrial Agreement for Police Act Employees, covering members of the Police Force in this State.  That is a deed of the Commissioner of Police and of the Union rather than the product of a decision of the Commission.  Whether this history of itself is sufficient to enable the Commission to interpret the Act as extending to members of the Police Force is a matter which is open to question.  Ordinarily, parties cannot give the Commission jurisdiction which it does not have. 

120           This is apparently the first occasion on which the jurisdiction of the Commission has been challenged.  The question was raised but deliberately not taken by the parties in Minister for Police and Commissioner of Police v Smith (supra).  Likewise, the point was not taken in the subsequent case of The Minister for Police v Western Australian Police Union of Workers (1995) 75 WAIG 1504.  Indeed, as Franklyn J observed in that case, which concerned the import of definition of “industrial matter” the context of conditions of conditions of “employment” for members of the Police Force in this State:

 “It is not suggested before us that the relationship between the Police Commissioner on the one hand and members of the Police Force and cadets on the other, is not that of employer and employees.  It is not suggested and, indeed, is accepted, that they are respectively employer and employees in the industry of law enforcement.”

121           It is to be noted that Rowland J agreed with the reasons published by Franklyn J. 

122           It has to be acknowledged that of recent years various courts and tribunals have adopted the view that police officers do fall within the ambit of industrial relations legislation.  Most recently the Federal Court in Konrad v Victoria Police (State of Victoria) and Another (1999) 165 ALR 23 has reaffirmed that members of the Victoria Police Force are employees for the purposes of the Industrial Relations Act 1988 (Cth).  The Court accepted that police officers were not employees at common law, but nonetheless held, having regard to the provisions of relevant International Labour Organisation conventions, to which that Act was designed to give effect or further effect, that the Act should be interpreted widely enough to include members of the Victoria Police Force, at least for the purposes of termination of employment.  Of course, those considerations have no application to a consideration of the meaning and effect of the Industrial Relations Act 1979.  However, observations by Anderson J in Menner 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 Perpetual Trustee Company (Ltd) (1951) 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.  That would be consistent with the opinions expressed by a Full Bench of the Australian Industrial Relations Commission in re Australian Federal Police Association (No 2) (supra), albeit that it was arrived at by a different process of reasoning.  The Industrial Relations Court of Australia in Cook v The Commissioner of Police (1996) 66 IR 361 has likewise held that members of the Police Force in Western Australia are employees for the purposes of the Workplace Relations Act 1996 (Cth).  A somewhat similar view, albeit in respect of different statutory provisions, was taken by the New South Wales Industrial Commission in re Police Officers Industrial Agreement [1981] AR 272 in respect of police officers in New South Wales.  Apart from these authorities, it could be said fairly that the basis on which the Police Force in this State is managed gives reason to conclude that members of the Force are both officers and employees of the Crown. [cf. Oceanic Crest Shipping Co. v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626].  Although the authority of police officers is derived from their office, their duties are derived largely from the dictates of the Commissioner of Police.  There is thus much to be said for the view that members of the Police Force in this State should be considered as employees for the purpose of the Industrial Relations Act 1979.  However, that is a matter upon which, for the reasons indicated, I need not express a conclusive opinion on this occasion.

123           If members of the Police Force in this State are considered to be employees, it is seriously open to question whether the employment relationship is one with either the Commissioner of Police or the Minister.  The better view is as suggested in Menner, that the employer-employee relationship exists with the Crown in right of the State.  It is not the case, as counsel for the Respondent appeared to suggest, that the Public Sector Management Act 1993 provides for the Commissioner of Police to be the employer.  That Act deems the Commissioner of Police to be the employer of public servants employed in the Police Service.  However, by reason of Sch I of the Act, members of the Police Force, as distinct from civilians employed in the Police Service, are excluded from the scope of the Public Sector Management Act 1993.

124           It follows, in my opinion, that the appeal should be upheld and the decision of the learned Commissioner quashed.

COMMISSIONER P E SCOTT:

125           I have had the benefit of reading the reasons for decision of His Honour, the President and of the Senior Commissioner.  There is no need for me to recite the background or the grounds of appeal.

126           As to Ground 1, I respectfully agree with the reasons for decision of the Senior Commissioner.  I agree that there is no power to make a declaration of existing rights flowing on directly from the provisions of the Police Act 1892.  The declaration made by the learned Commissioner at first instance is not one regarding the merits or otherwise of an industrial matter but is, in effect, an interpretation of the Police Act 1892.  The declaration is not one which is appropriately made under the Industrial Relations Act 1979, this Commission being a creature of statute and not one with inherent jurisdiction.

127           As to Ground 2, I also agree with the Senior Commissioner that this ground is made out.  Natural justice does not require a particular process or particular steps to be taken, but is able to be served by a range of processes appropriate to the particular circumstances.  There is no one formula to fit all cases where the application of the principles of natural justice is appropriate.  The two processes set out in the Police Act 1892 contemplate quite different circumstances, and had Parliament intended that the processes set out in s.23 and s.33E apply to s.8, one could reasonably assume that it would have so provided.

128           As to Ground 3, because the decision of the learned Commissioner is to be quashed on the basis of Grounds 1 and 2 being made out, there is no need, at this point, for this issue to be conclusively determined.  However, having said that I tend to the view, based upon the authorities referred to by both His Honour the President and the Senior Commissioner, that the issue of whether members of the Police Force are employees for the purposes of the Industrial Relations Act 1979 is to be based on the common law approach and the absence of a more detailed and specific definition of employee in that Act.  The historical view has been, as described by His Honour, that for the purposes of the Industrial Relations Act 1979, members of the Police Force are not employees.  However, recent decisions describe a dual capacity for members of the Police Force, which can include them being employees.  These recent decisions are mostly based upon Commonwealth industrial legislation which rely on a broader definition of employee, taking account of the requirement for that Commonwealth legislation to give effect to International Labour Organisation conventions.  The Industrial Relations Act 1979 requires no such consideration or broader application of the definition.

129           Accordingly, without the necessity of deciding the matter conclusively, I tend to the view that the members of the Police Force in this State are not employees although in light of recent history and developments, this matter requires further consideration.  I say this particularly in light of the approach taken by the respondent during the course of the hearing of this matter by the Full Bench, which was one of complaint that the issue had been taken by the appellant in light of decades of history of acceptance of the jurisdiction of this Commission, without dealing with the issue of the legal nature of the relationship in any substantial way.

130           Therefore, on the basis that Grounds 1 and 2 are made out, I would uphold the appeal and quash the decision at first instance.

THE PRESIDENT:

131           For those reasons, the appeal is upheld and the decision at first instance quashed.

Order accordingly