Public sector employment

See Fair Work Act 2009 s.795

Some public sector employees are covered by the national system and others are specifically excluded.

The Fair Work Act sets the meaning of public sector employment as employment of, or service by, a person in any capacity (including but not limited to):

• under the Public Service Act 1999 (Cth) or the Parliamentary Service Act 1999 (Cth)
• by or in the service of a Commonwealth authority
• under a law of the Australian Capital Territory relating to employment by that Territory, including a law relating to the Australian Capital Territory Government Service, or
• under a law of the Northern Territory relating to the Public Service of the Northern Territory or by or in the service of a Northern Territory authority.[1]

The following people are excluded from the national system (including but not limited to):

• a member of the Defence Force[2]
• a member of the Police Force of the Northern Territory[3]

Referred states can also exclude persons from the national system.[4]

• Consolidated list of exclusions for all referred states.

Northern Territory

A member of the Northern Territory Police Force who has been dismissed may appeal to a Disciplinary Appeal Board against the action.[5]

Victoria

Victoria has referred most of its State public sector and local government employees to the national system.[6] However, it has excluded the referral of matters related to persons employed as ‘executives’ and ‘Ministerial officers’ within the meaning of the Public Administration Act 2004 (Vic) ‘or persons employed at higher managerial levels in the public sector.’[7]

Victoria has also excluded the referral of matters related to the ‘termination of employment of law enforcement officers’.[8] A law enforcement officer means:

• a member of the Police Force
• a Police Reservist
• a Protective Service Officer, or
• a Police Recruit.[9]

A member of the Victorian Police Force who has been dismissed by the Chief Commissioner may apply to an Appeals Board for review of the dismissal order.[10]

Other states

The following public sector employees have not been referred to (and are therefore excluded from) the national system:

• Western Australia
  State public sector employees (also local government employees employed by non-constitutional corporations)
• New South Wales,[11]Queensland[12] and South Australia[13]
  State public sector employees and local government employees, and
• Tasmania[14]
  State public sector employees.

Like Victoria, Tasmania has referred most of its local government employees to the national system.

Officers and enlisted members in the Australian Defence Force (Army, Navy & RAAF)

See Fair Work Regulations 2009 (Cth) reg 6.08(2)

No civil contract of any kind is created with the Crown or the Commonwealth[15] as a result of:

• the appointment of an officer, or
• the enlistment of an enlisted member.

An officer or enlisted member can make a complaint to their commanding officer regarding a termination decision.[16] An officer or enlisted member cannot make a complaint regarding the issue of a termination notice under Part VIIIA of the Defence Act 1903 (Cth) or under Part 2 of Chapter 9 of the Defence (Personnel) Regulations 2002 (Cth).[17]

NOT a national system employer

Enlisted member of RAAF

Williams v Commonwealth of Australia, Print T2042 (AIRCFB, Giudice J, McIntyre VP, Hodder C, 17 October 2000).

The applicant was a former enlisted member of the Australian Defence Force. Because he was not subject to any contract of employment in that capacity, the Full Bench held that his application for relief in respect of termination of employment was correctly dismissed as incompetent.

Victorian Police probationary constable

Anderson v Victoria Police [2012] FWA 8524 (Roe C, 12 October 2012).

The applicant had been a probationary police officer in Victoria. She was held not to be entitled to apply for an unfair dismissal remedy because the Fair Work (Commonwealth Powers) Act 2009 (Vic) excluded members of the Victorian Police Force from the unfair dismissal jurisdiction of the Commission.