By Craig Over
In C v Commonwealth of Australia  FCAFC 113 the Full Court of the Federal Court of Australia ruled that Australian defence service men and women were not employees of the Commonwealth and thus, do not fall under the protection of the Fair Work Act 2009 (Cth). This ruling comes out of a claim that the Commonwealth had discriminated against a Royal Australian Air Force serviceperson within the meaning of s 351 of the Fair Work Act 2009 (Cth). The serviceperson argued that the RAAF took adverse action against him in the form of terminating his service because of his physical disability (being HIV positive). The reasons for the conclusion of the Court represents one of the more curious aspects of Australian law and, upon first thought, is not entirely intuitive.
At common law soldiers (taken to included air, marine and land forces) serve at the pleasure of the Crown; the regulation of the relationship between Crown and soldier forming part of the royal (executive) prerogative power. As a consequence, no contract for services or employment is formed between the enlisted member and the Crown.
The Court used a number of judgements to elucidate the common law position, which are of both legal and historical interest. For instance, in Coutts v Commonwealth of Australia (1985) 157 CLR 91 Dawson J stated that the relations between the Crown and members of the defence forces are of a different kind to that between employee and employer under private contract. His Honour went on to say:
In the absence of statute, it is the prerogative power which supports the relationship between members of the armed forces and the Crown and it is a concomitant of that relationship that none of them has at common law any right of action against the Crown for breach of contract or any right to sue for pay. The relationship is not a contractual one.
A significant consequence of a purely common law position is what Lord Esher MR said in Mitchell v The Queen  1 QB 121:
[a service officer] cannot as between himself and the Crown take proceedings in the courts of law in respect of anything which has happened between him and the Crown in consequence of his being a soldier. The courts of law have nothing whatever to do with such a matter.
However, in Australia, matters dealing with defence of the Commonwealth and the relation between itself and those who serve in the armed forces, is governed largely by statute and regulation. The Defence (Personnel) Regulations 2002 (Cth) contains regulation 117 which excludes the existence of a civil contract of any kind between the Crown or the Commonwealth as a result of appointment, enlistment, promotion, transfer or posting of a member. Whether the Fair Work Act 2009 (Cth) forms part of this governance structure was a question the Court was asked to address. To frame the question differently, the question for the Court was whether the common law position had been modified by the Fair Work Act 2009 (Cth).
The Court declined to accept the applicant’s submission that for the purpose of the Fair Work Act, the meaning of ‘employee’ should be given a wider meaning to that of the common law position. In turn the Court rejected the parallels drawn with members of the police force, as decided in Konrad v Victoria (1999) 91 FCR 95. In that case, the Industrial Relations Act, which governed termination, was a response to Australia’s obligations under the Termination of Employment Convention which had imported the definition of ‘employee’ directly from the Convention. To this end, the Court said ‘[t]he “ordinary meanings” of “employee” and “employer” are rooted in the common law. The ordinary meaning referred to must be the ordinary legal meaning as distinct from one of more colloquial context.’
The Full Court of the Federal Court of Australia identified in C v Commonwealth of Australia the source of constitutional law as relevant. Whereas the Industrial Relations Act depended, at least in part, for its constitutional validity on the external affairs power (51(xxix)) in the Constitution, the Fair Work Act has no such dependence and is instead supported substantially by the corporations power (51(xx)).
Therefore, given the variance in constitutional power and the absence of definitional importation into the Fair Work Act and the existence of regulation 117, the Court was able to easily distinguish Konrad v Victoria from the present case.
The Court concluded that notwithstanding the fact that the prerogative is now largely governed by statute, the legislative regimes which support and regulate the relations between enlisted members and the Commonwealth have in fact preserved the common law position in relation to employment rather than derogated from it.
The judgement represents a simple application of ordinary interpretative principles and is logically sound. However, it is not an exaggeration to suggest that the common law position on this matter may be in disharmony with modern community standards or understanding. Indeed, most Australians would probably find it incredulous that our defence personnel are not entitled to the protections of the Fair Work Act 2009 (Cth) in the same way as other employees. Nonetheless, any alteration to the common law will require clear legislative intent by the Commonwealth Parliament.
Craig Over, ‘All the King’s Men and Women’, Law and Justice, 10 September 2015 (La Trobe Law School Blog, http://law.blogs.latrobe.edu.au/)