Ratified treaty;¹ Foreign case law²

Action by a police constable for unfair dismissal/ Use of international law as a guide for interpreting domestic law/ Use of international legal instruments and foreign case law as a guide for interpreting the term "employee" enshrined in national legislation

A police constable had brought an action to establish that his dismissal had been unfair. He claimed that his dismissal violated Section 170 DE of the Industrial Relations Act 1988 (Cth) (hereafter “the Act”).

In order to adjudicate this action the Australian Federal Court examined whether Section 170 DE of the Act³ was applicable in that instance, that is to say, whether the term “employee” enshrined in that section covered police officers. The Court referred to the international instrument on which that Act was based, namely ILO Convention No. 158 on Termination of Employment, as well as foreign case law in order to give its decision.

The Court first pointed out that Division 3 of the Act [the division comprising Section 170 DE] had been adopted in order to apply ILO Convention No. 158 and Recommendation No. 166 on Termination of Employment and that consequently it had to be interpreted in conjunction with those instruments:

“Division 3 was enacted to give effect to the ILO Convention No. 158 (1982) and the Recommendation No. 166. When a statute implements a treaty, it is an accepted canon of construction that Parliament intends a provision to have the same effect as the corresponding one in the treaty (…). This effect is expressly enshrined in the Industrial Relations Act by s 170CB which provides that “(a)n expression has the same meaning in this Division as in the Termination of Employment Convention. Accordingly, to determine whether a constable is an “employee” for the purposes of Division 3, it is appropriate, in the first instance, to consider whether, upon the proper construction of the Convention, a constable is an “employed person” to whom the Convention is intended to apply.”⁴

In order to determine whether a police constable was an employee within the meaning of that Convention, the Court limited its analysis to “the ordinary meaning to be given to the terms of the treaty in their context and in the light of its objects and purpose”.⁵ The judges did not in fact rely on any further means of interpretation (preparatory work and/or any explanations of the meaning and scope of this instrument given by the ILO supervisory bodies), since they considered that analysis of the provisions of the Convention allowed them to determine clearly the meaning of the term “employee” as used in that instrument.⁶

“There can be no doubt that the Convention applies to publicly employed as well as privately employed workers. (…)Turning to the text of the Convention, without recourse to any preparatory material, the language of Article 2(1) is also sufficiently general to include public employees: that is the expression “all employed persons” is apt to include publicly employed persons. This interpretation is confirmed by the context. The context includes the fact that provision is made for the exclusion of categories of workers in respect of whom there may be “special problems” (Article 2(4)) and the fact that the standards of general application (set out in Part II) are equally applicable to public employees and to private employees.”⁷

The Court then established that “Once it is established that the Convention covers public employees (unless excluded), it follows that it also covers members of the police force as one category of public employees”.⁸ The Court went on to invoke in particular various instances of American⁹ and Canadian¹⁰ case law in support of its argument that police constables were included in the term “employees” as enshrined in the Act.

Reliance on ILO Convention No. 158 as a means of interpretation enabled the Federal Court to specify that Australian domestic legislation on termination of employment did indeed apply to police officers.