Submissions
81 In essence, the applicant contended he fell within the definition of "employment" in the context of the DD Act. The applicant submitted that the correct question was the meaning of employment in the DD Act which was to be determined by the application of the principles of statutory interpretation rather than commencing with the common law. Referring to the provisions of the DD Act and authorities which have considered the position of a police officer in other not dissimilar contexts, the applicant submitted the DD Act uses the term "employment" at least to include employment in the ordinary sense so as to refer to a person who is paid for performing work on a regular basis and at the direction of another. On the other hand the respondents submitted that there was no employment relationship at common law between a police officer and the Commissioner (as police officers are appointed) and nothing in the DD Act changes that position. To explain the common law position, the respondents referred to State of New South Wales v Briggs [2016] NSWCA 344; (2016) 95 NSWLR 467, in particular at [50] ff. It submitted that the ordinary meaning of employment refers to the existence of relationship between an employer and an employee engaged under a contract of employment: see Broadlex Services Pty Ltd v United Workers' Union [2020] FCA 867; (2020) 296 IR 425 at [25]-[27], [61]-[75]. The respondents submitted that the word "includes" in the definition of employment should be interpreted as "means", so that the definition is extending the common law meaning. The respondents accepted that the NSW Police Commissioner and senior executive police officers who are engaged on contract because of their positions by virtue of the Police Act, would however, be covered by the definition and therefore protected by the DD Act.
82 The applicant placed significant reliance on the decisions of Konrad v Victoria (1999) 91 FCR 95 (Konrad), Commissioner of Police v Estate of Russell [2002] NSWCA 272; (2002) 55 NSWLR 232 (Russell), and Police Service of New South Wales v Honeysett [2001] NSWCA 452; (2001) 53 NSWLR 592 (Honeysett) to illustrate what he contended is the ordinary meaning of employment, and that in certain circumstances, police officers have been held to be employees.
83 As the respondents correctly pointed out care needs to be taken in considering the authorities relied on by the applicant as each is dealing with a different legislative context. So much is plain from a consideration of the decisions.
84 In Konrad the appellants were officers in the Police Force of Victoria who challenged their dismissals in proceedings brought under Div 3 of Pt VIA of the Industrial Relations Act 1988 (Cth). The meaning of employee in that case was considered in the context where the object of the Division was to give effect to an international convention (the Convention Concerning Termination of Employment at the Initiative pf the Employer 1982) to which Australia was a party: s 170CA(1). The Division provided that "[a]n employer must not terminate an employee's employment unless there is a valid reason … connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service": s 170DE(1) and that an employer must not terminate an employee's employment by reason of the employee's physical disability: s 170DF(1)(f). Although the Division did not contain any definitions of the terms "employee" or "employer", s 170CB provided that an expression in the Division had the same meaning in the Division as it did in the Termination of Employment Convention. The Convention referred to the terms "workers" and "employed persons" (but were not defined). As a consequence, Finkelstein J at [42]-[104] addressed inter alia, the issue of whether, on the proper construction of the Industrial Relations Act 1988 (Cth) in light of its intention to give effect to the Termination of Employment Convention, a police constable was an "employed person" to whom the Convention, and therefore the Act, is intended to apply.
85 In the above context, in Konrad, Finkelstein J said at [100]-[104]
[100] Returning to the question whether the employee who is referred to in Division 3 is a common law employee it is necessary, in my view, to have regard to the following matters. First, provisions such as are to be found in Division 3 should not be given a narrow construction. Division 3 is in the nature of a human rights code and should be given an interpretation that will advance its broad purposes. It is not appropriate to minimise the rights conferred by this type of legislation and so diminish its proper impact: compare Canadian National Railway Co v Canada [1987] 1 SCR 1114 at 1134 per Dickson CJ; Ontario Human Rights Commission v Simpson Sears 1985 CanLII 18 (SCC); [1985] 2 SCR 536 at 547 per McIntyre J.
[101] Second, there has been much informed criticism of the common law notion of employee…
[102] Third, remembering that the purpose of Division 3 is to give effect to the Convention, in the absence of a clear indication to the contrary, the Division should not be construed more narrowly than the Convention. In that regard there can be no doubt that the expressions "employed person" and "worker" in the Convention do not bear their common law meaning. The overwhelming majority of States who adopted the Convention are not common law countries. There can also be no doubt that the Convention intended to include public employees within its scope. Further, it follows from the fact that all public employees are covered by the Convention, that the Convention is not concerned to distinguish between holders of public office on the one hand and public employees on the other.
[103] In my view, bearing the foregoing factors in mind, I can see no reason why the word "employee" when used in Division 3 should be confined to its common law meaning. If it was so confined, it would bring about the following unintended consequences. In the first place, it would exclude from the operation of the Division persons who are just as vulnerable and in need of protection as common law employees. In the second place, adopting a narrow meaning of the word "employee" would place Australia in breach of its obligations under the Convention which it has ratified. In the third place, a narrow construction of the word "employee" would defeat the object of the Division which is to give effect to the Convention.
[104] In the context of Division 3 it is my view that, speaking generally, an employee is a person who performs work or labour (personal services) for another; that is to say, a person who sells his labour and not the product of his labour. Further, once it is accepted that the common law meaning of the word "employee" does not control Division 3, in my opinion it necessarily follows that a constable is an employee who is entitled to the protection of the Division. In almost all respects a member of the police force is in the same position as any other employee of the Crown. He is subject to the direction and control of the Crown, although he acts "independently" in the manner in which he carries out certain duties. He is paid a regular wage and makes no profit. He is provided with equipment needed to carry out his duties. His position, nowadays at least, is permanent. He is entitled to holidays, sick leave and other entitlements afforded generally to employees.
86 It followed therefore, that "employee" in the Industrial Relation Act 1988 (Cth) was not confined to its common law meaning, and that police officers in the State of Victoria were employees within the meaning of that legislation.
87 In Russell the New South Wales Court of Appeal considered a question of law referred to that Court which necessitated a consideration of the meaning of the word "employee" for the purpose of the Anti-Discrimination Act 1977 (NSW), and whether a police officer is an employee of the Commissioner of Police. Mr Russell, who was an Aboriginal man who had died, had been the victim of unlawful racial discrimination and racial vilification perpetrated by a group of New South Wales police officers. The Anti-Discrimination Act, defined employment as "includes work under a contract of services": s 4. The provision considered in the proceedings was s 53 of the Anti-Discrimination Act, which relevantly stated that "[a]n act done by a person or agent or employee of the persons principal or employer which is done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of that act, authorise the agent or employee, either expressly or by implication, to do an act": s 53(1). The Court concluded that for the purposes of the Anti-Discrimination Act, the word "employee" should not be narrowly read such as to confine it to situations in which there is a contract of employment, but that it extended to the situation of a police officer.
88 Spigelman CJ gave the judgment for the Court with Stein JA and Davies AJA agreeing. Spigelman CJ described the relevant arguments before the Court at [79]-[82]:
[79] Counsel for the Appellants supported the approach to construction of s53 adopted by Sully J. As I have indicated above, his Honour read the words "Commissioner of Police" in place of the word "employer" in s53. This left the word "employee" unaffected. In this Court, the Appellants supported his Honour's assumption that the word "employee" in s53, and elsewhere in the Anti-Discrimination Act, is to be understood as a legal concept identifying a particular common law relationship. It is extended to encompass independent contractors, by the definition of "employment" to including "work under a contract for services", but the statute did not, it was submitted, otherwise affect the common law concept.
[80] As indicated above, there are a number of categories of members of the Police Service of New South Wales. Some of the categories are expressly stated to be employees. All members of the Senior Executive Service must enter into a contract of employment. The Police Service Act, notably, does not treat police officers as being subject to a contract of employment. It was this differentiation which, to a substantial degree, caused Sully J to conclude that the traditional common law position has not been altered by the Police Service Act.
[81] The issue, however, is not one of construction of the Police Service Act directly. The issue is the meaning of the word "employee" in the Anti-Discrimination Act 1977, particularly after its amendment in 1997 to include s4B. Whether a word such as "employee" is used in a technical legal sense depends on the construction of the specific statute in which it appears.
[82] The word "employee" has a legal meaning in the sense of a person who has a contract of employment with another. However, the word is capable of being used in a more general sense to encompass a person who is paid for performing work on a regular basis at the request, and at the direction, of another. In particular statutes the word "employee" will often be construed to extend to an independent contractor, even in the absence of an express statutory extension of a character contained in the Anti-Discrimination Act. The issue turns on the proper construction of the word in its context, in which process the scope and purpose of the statute under consideration plays an important part.
89 In reaching its conclusion the Court referred to Honeysett which was delivered subsequent to the decision of the primary judge in Russell. Spigelman CJ observed at [83]-[86]:
[83] Subsequent to the decision of Sully J, a similar issue arose in this Court in Police Service of New South Wales v Honeysett, supra. The Police Service paid workers compensation to a passenger of a car driven by a police officer. It brought an action against the officer for indemnification. Pursuant to s3 of the Employees Liability Act 1991 the police officer would have been liable to indemnify the Service if she was not an employee. That section commences with the words: "If an employee commits a tort for which his or her employer is also liable …".
[84] Priestley JA, with whom Ipp AJA and Sperling J agreed said:
"[22] The Police Service Act in my opinion shows a use of the idea of employment in its ordinary sense running in parallel with a recognition of the continuing office of constable as an office that can be exercised simultaneously with an employment relationship existing between the Police Service and the police officer. This seems to me to be a realistic recognition of the fact that the range of duties a police officer may be required to fulfil pursuant to the Police Service Act appears to be at least potentially and I would think almost certainly in practice, much wider than the range of duties required by the office of constable."
[85] His Honour also said:
"[30] The Police Service Act shows that in many ways the conditions of service of police officers had been substantially assimilated to those of ordinary employees; the Workers Compensation Acts have shown the same development as have various Acts regulating industrial relations. The fact that some of these Acts, preceding the Police Service Act, only apply to police officers by virtue of deeming provisions does not detract from the factual situation that has now been reached that in virtually every way police officers are treated statutorily as employees and, in the Police Service Act, in 1990, were treated as employees in an undefined sense.
[31] When those considerations are taken into account with the strong purpose behind the Employees Liability Acts of ensuring that persons in the position of employer should not be able to pass on to persons in the position of employees liabilities incurred by the employers as a result of things done by employees in the course of their employment, it seems to me that the word employee in s 3 of the Employees Liability Act 1991 should not only be read as including police officers working (to use a neutral term) for the Police Service pursuant to the Police Service Act but in fact means a class of persons including police officers working pursuant to that Act."
[86] A similar conclusion was reached by the Full Court of the Federal Court of Australia in Konrad v Victoria (1999) 91 FCR 95 where the issue is whether a member of the Victorian Police Force was an employee for the purposes of Div 3 Pt VI A of the Industrial Relations Act 1988 (Cth). The scope and purpose of the Act there under consideration led to the result that police officers were held to be employees for purposes of that legislation (see especially at [13]-[15], [59], [100] and [104]). The intent of the legislation was that it applied to "all workers" (at [14] and see [59] and [104]).
90 Spigelman CJ referred to the Anti-Discrimination Act and observed at [87]-[88]:
[87] In the statute presently under consideration, the word "employee" appears in each of the provisions of the Act rendering it "unlawful for an employer to discriminate against an employee" on the relevant ground, in the present case, race. For beneficial legislation, such as the Anti-Discrimination Act, a liberal interpretation is appropriate. This is reinforced by the purposive approach required by s 33 of the Interpretation Act 1987. (See IW v City of Perth (1997) 191 CLR 1 esp at 11-12, 18, 22-23, 58.)
[88] Nothing in the scope and purpose of the Act suggests that it should be limited to persons subject to contracts of employment, even with the specific statutory extension to include work under a contract for services. Insofar as persons do "work" in a context closely analogous to "employment", the purpose of the legislation would be better served by extending the protection of the Act to such a relationship. There must be some element of regularity and permanence in the relationship, and also an element of direction and control of work, for it to fall within an extended sense of the word "employment". But where such context exists, the Court should be slow to hold that the Act has no application.
91 The consequences of the appellant's submission were addressed at [89]-[91]:
[89] …Accordingly, on the submissions for the Appellants in this case, the only members of the Police Service who would not be covered by the protection of the Anti-Discrimination Act, in the sense that they could complain about discrimination against them in work, are police officers. This is a most unlikely result, particularly after the enactment, in 1997, of s 4B.
[90] Appointments to the Senior Executive Service and appointments to non-executive positions of commissioned police officers are made by the Governor on the recommendation of the Police Board. (See s 36(1) and s 64(1)(a) of the Police Service Act.) Appointment of constables, sergeants and administrative officers are made by the Police Commissioner. (See s 64(1)(b).) It is the Commissioner who is denoted as the relevant "employer" by the 1997 amendments of the Anti-Discrimination Act. This is no doubt a reflection of the Commissioner's authority over the whole of the Service, established by s 8 of the Act, quoted above. It would be an extraordinary anomaly if, as the Appellants contend, the Commissioner was deemed to be the employer under s 4B for the purposes of the Senior Executive Service, whom he does not appoint, but is not such an employer for purposes of the non-commissioned officers, whom he does appoint.
[91] Counsel for the Appellants also accepted that it was a necessary consequence of the construction for which he contended that if a member of the Senior Executive Service committed a discriminatory act against a third party, the Commissioner of Police could be held liable under s 53. However, no such consequence would flow in the case of police officers. This is another anomaly which is unlikely to have been intended.
92 There were a number of textual indications also said to support that the word employee ought to be given a narrow construction, including that the word employee appears most frequently in the context of reference to work: at [92]. Spigelman CJ did place "particular significance" on the language of s 4B: at [93]. He also concluded that the purpose served by the various sections which referred to employee would be best served if the meaning were not confined. Section 4B in the Anti-Discrimination Act provided inter alia, that a reference in that Act to employer in relation to employment in the Police Service is a reference to the Commissioner of Police, and anything determined or done with respect to any such employment by an officer or employee in the Police Service who is authorised to determine and do things in that respect is taken to have been determined or done by the Commissioner of Police.
93 As the respondents submitted, there is no such equivalent provision in the DD Act.
94 In relation to Honeysett, the applicant relied inter alia on the reasoning of Priestley JA referred to above, and the reference to the second reading speech of the Police Act, with the conclusion at [28]-[32] that it reflects that in ordinary language usage there is no difficulty in understanding that police officers are employees and that it supports the view that that ordinary language usage is carried into the PSA itself. In that regard it is also appropriate to refer to the Court's reasoning at [21]-[22]:
[21] Part 6 which provides for "Non-executive officers of the Police Service" uses somewhat different language and its provisions, looked at in isolation, could be regarded as equivocal in regard to the employment question I am now considering. That equivocation is lessened by the heading of Pt 8: "General provisions relating to employment of all members of the Police Service". Although Pt 8 does not itself use the word employment, the situations it deals with and the prescriptions it lays down for members of the Police Service are all consistent both with the heading and with the idea that members are employees, who may at the same time hold the public office of Constable.
[22] The Police Service Act in my opinion shows a use of the idea of employment in its ordinary sense running in parallel with a recognition of the continuing office of constable as an office that can be exercised simultaneously with an employment relationship existing between the Police service and a police officer. This seems to me to be a realistic recognition of the fact that the range of duties a police officer may be required to fulfil pursuant to the Police Service Act appears to be at least potentially and I would think almost certainly in practice, much wider than the range of duties required by the office of constable.
95 The applicant contended that a consideration of the Police Act itself bears that out. In particular, reference was made to the preamble (recited above), the composition of the police force: s 5 (recited above), Part 6 which addresses non-executive police officers and refers in instances to employment: for example, s 72, and that the Commissioner is the employer of non-executive officers for the purposes of any proceedings relating to non-executive officers held before a competent tribunal having jurisdiction to deal with industrial matters: s 85. It was submitted that these features are reminiscent of the features discussed in Honeysett. In so far as the applicant's submission was based on s 85 creating an employment relationship, it appears to have been advanced as an alternative argument.