Industrial Relations Commission New South Wales Medium Neutral Citation: Ross v NSW Police Force; Mayo v NSW Police Force [2011] NSWIRComm 1005 Hearing dates: 8 February 2011 Decision date: 23 February 2011 Jurisdiction: Industrial Relations Commission Before: Lynch AC Decision: Both appeals are struck out for want of jurisdiction Catchwords: Contract of Employment. Definitions of "public sector employee" and "public sector employer" - Part 7, Division I, section 91(1) of the Industrial Relations Act 1996. Decision of a kind referred to in Part 7, Division 3, section 97(1) of the Industrial Relations Act 1996 Legislation Cited: Industrial Relations Act 1996 Cases Cited: Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 Reverend Howard Ian Knowles and The Anglican Property Trust, Diocese of Bathurst [1999] NSWIRComm157 In re Crown Employees (Technical Teachers) Award [1974] AR 450 Category: Procedural and other rulings Parties: Danielle Michelle Ross (First Appellant) Rhondele Veronica Mayo (Second Appellant) NSW Police Force (Respondant) Representation: McGuire James Hall & Associates (Appellants) N Quinn, Senior Industrial Officer (Respondent) File Number(s): IRC 1479 of 2010 and IRC 1488 of 2010 DECISION Introduction 1These matters were heard on 8 February, 2011. The parties supplied written submissions to the Commission prior to the hearing and further oral submissions at the hearing on 8 February, 2011. 2The appellants, Ms Danielle Ross and Ms Rhondele Mayo, sought to have the two matters joined and the evidence in one matter be considered evidence in the other matter. The joining of the matters was not opposed by the respondent. 3Both appellants were students at Charles Sturt University, enrolled in the Associate Degree in Policing Practice (ADPP) at the New South Wales Police College, Goulburn. 4On 3 December, 2010 Ms Ross had her professional suitability for employment as a police officer removed by the Principal of the Police College. On 30 November, 2010 Ms Mayo had her professional suitability for employment as a police officer removed by the Principal of the Police College. 5On 6 December, 2010 the appellants had the decisions of the Principal of the Police College reviewed by the students professional suitability appeal panel. The appeal panel members substituted a period of suspension of 5 years from 30 November, 2010. 6On 17 December, 2010 Ms Ross filed an appeal in the Industrial Relations Commission pursuant to section 98 of the Industrial Relations Act 1996 (the Act). On 20 December, 2010 Ms Mayo filed an appeal in the Industrial Relations Commission pursuant to the same section. Issues 7The issues between the parties are whether there was a contract of employment; whether the parties come within the definitions of "public sector employee" and "public sector employer" pursuant to Part 7 of the Act; and whether there is a decision of a kind referred to in section 97(1) of the Act thereby grounding an appeal pursuant to section 98(1) of the Act. Respondent's and Appellant's Cases 8The respondent held three grounds of objection to the appeals. Firstly, the jurisdiction of the Industrial Relations Commission under Division 3 of Part 7 of the Act is only available to an employee of a public sector employer. Ms Mayo is not employed by the Police Force and consequently may not bring an appeal. Secondly, the decisions being appealed were to remove the appellants suitability for employment as Police Officers by the Police Force. Division 3 of Part 7 of the Act does not confer power on the Industrial Relations Commission to deal with appeals arising out of decisions made as part of an assessment for eligibility for employment. This is not a decision of a kind provided by section 97(1) of the Act. Thirdly, the decision is the exercise of a power contained in an agreement between the student and the University, not one arising out of an employment relationship. 9Ms Julie Middlemiss, the Principal of the Police College at Goulburn, in her Affidavit stated that her role is responsible for the overall management and leadership of the Police College, where all prospective Police Officers begin their study for an Associate Degree of Policing Practice (ADPP). This qualification is the major pathway into employment as a Police Officer. Successful students attest to become Probationary Constables at the completion of Session 2 of the ADPP, which is when their employment commences. Since 1998 the Police Force and Charles Sturt University have been involved in a collaborative partnership to provide police recruit education. The partnership arrangements are the subject of contract arrangements between the Police Force and Charles Sturt University, oversighted by the Board of Management. Charles Sturt University manages the office of placements onto the ADPP in conjunction with the Police Force, with students administered under similar processes as normal university students. Enrolments are only offered to candidates who meet the required entry criteria. Places are limited by the Police Force. ADPP students pay university fees, higher education contribution scheme fees and may apply for student loans. ADPP students are also required to adhere to the requirements of Charles Sturt University and have a number of requirements placed on them by the Police Force. After the completion of Session 2 of the ADPP the final 3 Sessions can only be undertaken whilst employed by the Police Force. Applicants to the ADPP are advised in recruitment literature, various application forms, career day presentations and other hardcopy and electronic documents that there is no guarantee of employment with the Police Force. To be offered employment with the Police Force, students must successfully complete all requirements of Session 1 and 2 within the time frames of the program including health, fitness and professional suitability requirements. No student is paid any wage or salary of any kind. Salary commences from the time employment commences on attestation at the end of Session 2, at the Probationary Constable rate under the appropriate award. Professional suitability forms part of the application process to apply and enrol in the ADPP. In addition, during Sessions 1 and 2 the professional suitability of all students is monitored and re-assessed. Both the Police Force and Charles Sturt University have the ability to remove a student due to their inappropriate or unacceptable conduct, behaviour or performance. Ms Middlemiss, as the Principal of the Police College, has the ability to review a student's professional suitability to remain enrolled in the ADPP based on a range of circumstances. 10The appellants held two grounds of objection to the appeals. Firstly, the employment of the appellants was under the Common Law. The appellants were employed at the pleasure of the Police Force in accordance with the Common Law. Secondly, the appellants come within the definition of "public sector employees" of a "public sector employer" under section 91(1)(a) and section 91(1)(e) of Part 7 of the Act. 11In submissions to the Commission the appellants, through their representative, Mr McGirr, said that both appellants received information from the Police Force in relation to embarking upon a career path in the Police Force. The career required compulsory commencement and obtaining an Associate Degree in Policing Practice, a course run by the Police Force in partnership with Charles Sturt University under the direction of the Police Force. The Principal of the Police College is a serving Police Officer with various Police Officers all engaged in conducting lectures to the appellants. In short, the Police College is owned and run in the same way as it was previously run in the 1980's and 1990's without the involvement of Charles Sturt University. The Police students of the Police College are required by agreement with the Police Force to attend Charles Sturt University and to be subject to curfews and other limitations and controls on their behaviour. The appellants signed on and were recruited to a lifetime career in the Police Force and were inducted into the system. That system being a system of employment conducted by the employer, the Police Force. The recruitment system and the career path must be considered as a whole. Attendance at the Police College cannot be seen in isolation on its own. Whilst at the Police College the appellants underwent severe and inquisitional interrogation by serving members of the Police Force. The appellants have expended considerable amounts of money and lost considerable amounts of money by having to attend the Police College on many occasions and on some occasions, having foregone employment benefits elsewhere, having jeopardised future employment opportunities solely for the benefit of the Police Force. Attending the Police College without graduation is of no benefit to the appellants. There was no mode of remuneration in the form of a pay packet but there was a promise of remuneration upon graduation and a reasonable expectation that they would be treated fairly and would eventually obtain such mode of remuneration. Taking the system of employment as a whole and inter alia the attendance at the Police College and enrolment in a recruitment system offering a career path it should be regarded as circumstances of an employer/employee contract of employment. Findings 12It was agreed between the parties that the appellants were not Police Officers. As the appellants were not Police Officers employed by the Police Force under the Police Act 1990, it is necessary to determine whether there was a contract of employment between the parties. 13In Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR16 the High Court in discussing whether there was a contract of employment between the parties said: "The first question to determine is whether the relationship between Brodribb and Gray was one of employer and employee or one of principal and independent contractor. It will also be convenient at this point to consider whether Stevens was an employee of Brodribb or an independent contractor, for, although not directly relevant to the matter presently under consideration, both issues arise from a common factual foundation. A prominent factor in determining the nature of the relationship between a person who engages another to perform work and the person so engaged is the degree of control which the former can exercise over the latter. It has been held, that the importance of control lies not so much in its actual exercise, although clearly that is relevant, as in the right of the employer to exercise it (Zuijs v. Wirth Brothers Pty Ltd [1955]HCA 73; (1955)93 CLR 561 , at p 571; Federal Commissioner of Taxation v. Barrett [1973]HCA49; (1973) 129 CLR 395 , at p402; Humberstone v. Northern Timber Mills [1949] HCA 49; (1949) 79 CLR 389). In the last-mentioned case Dixon J. said (at p 404): "The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter's orders and directions." which to gauge whether a relationship is one of employment. The approach of this Court has been to regard it merely as one of a number of indicia which must be considered in the determination of that question (Queensland Stations Pty ltd v. Federal Commissioner of Taxation [1945] HCA 13; (1945) 70 CLR 539 , at p 552; Zuijs' Case; Federal Commissioner of Taxation v. Barrett, at p 401; Marshall v. Whittaker's Building Supply Co. [1963] HCA 26; HCA 26; (1963) 109 CLR 210, at p 218). Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays. the deduction of income tax and the delegation of work by the putative employee." 14In Reverend Howard Ian Knowles and The Anglican Property Trust, Diocese of Bathurst [1999] NSWIRComm 157 the President, Wright J said: "The authorities show that it is necessary to have regard to a wide range of matters in order to determine whether the nature of the relationship is such as to constitute employment; see generally Stevens at 24.5 per Mason J; 35.5 per Wilson, Dawson JJ; 49.8 per Deane J; Commissioner of Taxation v Barrett [1973] HCA 49; (1973) 129 CLR 395 at 406-407 (commission agents); Zuijs v Wirth Bros Pty Ltd [1955] HCA 73; (1955) 93 CLR 561 at 572-273 (trapeze artists). Examination of these authorities shows that although control may represent "the surest guide" ( Stevens at 36.3) it is not the sole criteria. Other relevant matters are:- (a) The form, frequency and mode of remuneration: Stevens at 24; Zuijs at 572.3; (b) Provision and maintenance of equipment: Stevens at 24; (c) Obligation to work: Stevens at 24, Purvis at 6; (d) Hours of work, roster: Stevens at 24, 36.9; Barrett at 406.7; Zuijs at 572.5; (e) Provisions for holidays; Stevens at 24; (f) Deduction of income tax: Stevens at 24, 37.2; (g) Capacity to delegate work by putative employer: Stevens at 24; (h) Right to have a particular person do the work: Stevens at 36.9; (i) Right to suspend, dismiss or discipline: Stevens at 36.9; Zuijs at 572.3; (j) Right to exclusive service: Stevens at 36.9, Barrett at 406.3; (k) Payment of outgoings: Stevens at 37.2; (l) Duration of appointment and/or permanency: Barrett at 406.2; (m) Possibility of promotion: Barrett at 406.5; (n) Extent of reporting/supervision: Barrett at 406.6, Zuijs at 572.3; (o) Level of integration into organisational structure: Stevens at 26.5, Barrett at 405.1; (p) Requirement to conform to employer's requirements with respect to ethical conduct, compliance with the law and observance of appropriate procedures: Barrett at 407.8; Zuijs at 572.7; (q) Method of selection or recruitment: Barrett at 407.8; (r) Level of economic dependency: Purvis at 8; (s) Use of sick leave and/or annual leave: Purvis at 8; (t) The language of the contract: Purvis at u7; (u) The use of written directions: Barone v Olympic Industries Pty Ltd (1984) 8 IR 439 at 443." 15Also, In re Crown Employees (Technical Teachers) Award [1974] AR 450 the Industrial Commission said: "For our purposes we accept as authoritative the decisions of the High Court of Australia as to the test or tests proper to be applied by a court when determining whether a particular contractual relationship is that of employer and employee. The decision in Zuijs v. Wirth Brothers Pty ltd, to which Mr Kirby referred, contains a modern exposition of the control test, stressing as it does, that what matters is lawful authority to command so far as there is scope for it. But the existence of lawful authority to command is not decisive that the contract providing for it is a contract of service, and other countervailing terms of the contract may outweigh a reservation of a right to control the manner in which work is performed. In Queensland Stations Pty Ltd v. Federal Commissioner for Taxation the High Court was called on to rule whether a drover was an independent contractor or an employee under a contract requiring him to serve as a drover and obey and carry out the instructions of the other party. having regard to the whole of the terms of the contract it was held that the drover was an independent contractor. Dixon J., as he then was, said: There is, of course, nothing to prevent a drover and his client forming the relation of employee and employer: ....But whether they do so much depend on the facts. In considering the facts it is a mistake to treat as decisive a reservation of control over the manner in which the droving is performed and the cattle are handled. For instance, in the present case the circumstance that the drover agrees to obey and carry out all lawful instructions cannot outweigh the countervailing considerations which are found in the employment by him of servants of his own, the provision of horses, equipment, plant, rations, and a remuneration at a rate per head delivered. In Ready Mixed Concrete (South East) Ltd v. Minister of Pensions and National Insurance MacKenna J. regarded that passage in the judgment of Dixon J. as supporting the following proposition which he formulated: An obligation to do work subject to the other party's control is a necessary, though not always a sufficient, condition of a contract of service. If the provisions of the contract as a whole are inconsistent with its being a contract of service, it will be some other kind of contract, and the person doing the work will not be a servant. The judge's task is to classify the contract (a task like that of distinguishing a contract of sale from one of work and labour). He may, in performing it, take into account other matters besides control. In our opinion that proposition is a correct statement of the law and we will act on it. We think that it emphasizes a consideration, which has not always been apparent in earlier decisions, that the reservation of control is a necessary, though not always a sufficient, condition of a contract of service." 16From the above authorities, for there to be a contract of employment an employee must perform work for an employer. The Police Force does not retain authority to command the appellants in the performance of work until the end of Session 2 of the ADPP when a student Police takes attestation and swears his/her oath of office and commences their employment with the Police Force. The appellants were suspended prior to their attestation and swearing of their oaths of office. The appellants are involved in a contract for the provision of educational services between them and Charles Sturt University. The appellants are not performing work, they are taking part in educational services. There is no provision for remuneration as no work is being performed. 17A prominent factor in determining the nature of the relationship between a person who engages another to perform work and the person so engaged is the degree of control which the former can exercise over the latter. 18Although there is no contract to perform work between the appellants and the Police Force, the Police Force has a degree of control over the appellants. The appellants have a number of requirements placed on them by the Police Force. There is a right to suspend, dismiss or discipline subject to the contract between Charles Sturt University and the appellants, but the Police Force, because it works in partnership with the University, has a degree of control over this process. The Principal of the Police College, a Police Officer, removed the appellants suitability for employment as Police Officers. The appellants whilst attending the Police College are required to obey controls on their behaviour. Instruction is given to the appellants by serving Police Officers. 19However, the control test is one of a number of indicia which must be considered when deciding whether the relationship is one of employer and employee. 20A number of other indicia are: The appellants are not paid any remuneration and there is no obligation placed on them to work. There is provision for and maintenance of equipment. There are no hours of work but there is a lecture schedule. There is no provision for holidays and no deduction of income tax. There is no capacity to delegate work by the Police Force and there is no right to have a particular person to do the work. There is a right to suspend, dismiss or discipline. When at the Police College the appellants are subject to the control exercised by the Principal at the Police College. This control is stricter than what would normally be imposed upon a student. There is no right to exclusive service or payment of outgoings. The duration of appointment or permanency depends on the appellants enrolment. There is no possibility of promotion. There is no level of integration into the organisational police structure until after the appellants are employed as Police Officers. There is no reporting or level of supervision upon the appellants. There is a requirement to conform to the Police Force's requirements with respect to ethical conduct, compliance with the law and observances of appropriate procedures. The method of selection or recruitment is undertaken by the Police Force subject to its partnership with Charles Sturt University. There is no level of economic dependency and there is no use of sick leave or annual leave. The language of the contract is one of enrolment between the appellants and Charles Sturt University and the use of written directions is found in the enrolment between the appellants and Charles Sturt University. 21Thus I find there is no contract of employment between the Police Force and the appellants, although there is an agreement between Charles Sturt University and the appellants for the provision of educational services. 22Ms Ross although a public sector employee in her administrative position with the Police Force performing the role of a Clerk Grade 1/2 had been granted a period of leave without pay to attend the Police College to become a student Police. There is no contract of employment between Ms Ross and the Police Force whilst she was a student Police and she was not employed by the Police Force in that capacity. 23Because there is no contract of employment between the appellants and the Police Force, they do not fall within the definitions of "public sector employee" and "public sector employer" within Part 7 of the Act and there is no decision of a kind referred to in section 97(1) of the Act. ORDER 24Both appeals are struck out for want of jurisdiction. P Lynch Acting Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 February 2011