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Police risk lives without protection of modern employment law

17 Jul 2015

The University of Sydney Business School

By Giuseppe Carabetta

More than 58,000 sworn state police officers in Australia perform demanding work daily serving our community. The risk of routine activities escalating to injury or life-threatening violence with little or no warning makes officers deserving, and needing, of high level protection both in the field and at law. Yet unlike the majority of public sector workers, police have never been employees in the legal sense of the term.

The leading decision on the issue is A-G (NSW) v Perpetual Trustee Co Ltd, a 1955 decision, in which the Crown, in fact, failed in arguing that police officers are employees.

The Privy Council, in a passage that has been followed in numerous cases, declared that:

‘[T]here is a fundamental difference between the domestic relation of servant and master and that of the holder of a public office and the State which he is said to serve. The constable falls within the latter category. His authority is original not delegated and is exercised at his own discretion by virtue of his office..’

That is, because police officers exercise ‘original’ powers derived directly from the office of constable, and because those powers are independent discretionary powers, they are not Crown employees, unlike most other public servants in Australia.

This notion that police officers exercise only ‘original’ powers is supported by the pristine British view of the police constable as simply ‘a person paid to perform, as a matter of duty, acts which if he were so minded he might have done voluntarily.’  

Perpetual Trustee was based on the relevant legislative provisions applying under the Police Regulation Act 1899 -1947 (NSW), including the oath of office which required all police officers to ‘serve our Sovereign Lady the Queen in [the office of constable]’.

These provisions strike similar to the legislative provisions under our modern Police Acts, and Perpetual Trustee has applied in various employment contexts since, including vicarious liability, health and safety, and contractual remedies.

The problem with the Perpetual Trustee holding, however, is that it ignores the duality of a police officer’s role.

While it is true that police officers exercise discretionary powers by virtue of their office, it is also clear they discharge functions not unlike those of most other public sector employees.

Perpetual Trustee also ignores the fact that under the Police Acts the Commissioner’s superintendence of the force is – aside from where this involves their special peace-keeping powers – subject to government control, and police officers operate in structured command-and-control systems.   

Further, it cannot be denied that there are many other aspects of a police officer’s engagement that are indicative of an employment relationship, including their high level of organisational integration, permanency of appointment, and various other criteria.

While a number of cases have confirmed the rule from Perpetual Trustee, more recent Australian cases – most notably the decision of the Full Federal Court in Konrad v Victoria Police (1999) dealing with access to unfair dismissal laws – have found ways around Perpetual Trustee.   

It is also clear that there is strong judicial support for some notion of a dual-status for police officers, as both office-holders and employees, without disturbing their discretionary peace-keeping powers.

Whether or not police are employees nowadays has less significance due to statutory provisions deeming police officers to be Crown employees for specified purposes, such as health and safety, vicarious liability, and industrial relations matters.

Nonetheless, modern cases such as Konrad’s highlight that despite these arrangements, the employee question is still very much a live issue in guaranteeing police employment protection – although whether it is determinative often depends on whether the parties (or the courts) choose to raise the issue.  

Given the problems with the uncertainties and potential inequities arising from Perpetual Trustee – even in modern times – the courts should now recognise that police officers are the wearers of two hats and hold that they are both office-holders and employees.

This would not only promote symmetry in police officers’ current employment entitlements, but also reinforce their relationship with the community they ‘serve’.

First published in The University of Sydney Business School

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