72 It follows, in this statutory scheme, that terms of a contract agreed between a teacher and the Director-General can be overridden by awards made under the Industrial Relations Act and by agreements made pursuant to s 14 of the Teaching Service Act between the Director-General and the Federation.
73 It was on that basis of that view, that I proceeded to consider whether or not the evidence showed that the three teachers were employed under a contract of employment, containing the claimed terms in relation to service transfer.
The three teachers' contracts
74 On the evidence, the three teachers each applied for positions with the Teaching Service. Initially, Mr Murphy obtained a casual position and subsequently, a permanent one. Mr de Wall had a permanent position from the outset and Ms Wyper was initially appointed to a temporary position, before appointment to a permanent position.
75 The letters of appointment were in evidence. They each advised the teacher of their appointment as a teacher at a particular school. The teachers had each applied for such positions. While short and not otherwise dealing at all with the statutory scheme, or the applicable conditions of employment, the letters of appointment were clearly capable of evidencing the existence of a contract of employment under which the teacher was appointed to a Departmental teaching position. Nothing more was required. That this was what the letter intended to advise was confirmed by the fact that thereafter, the teachers were treated by the Department as if they were its employees, with the applicable award attaching itself to the teachers' contract of employment. That is what Ms Shearer's evidence conveyed.
76 Nothing in the evidence threw into doubt that such a contract had come into existence in each case and that thereafter, the teacher and the Department had proceeded on the basis of such a contractual relationship. The Director-General led no such evidence, indeed to the contrary, evidence was led from Ms Shearer that, for example, Mr Murphy was first employed 'as a permanent officer on probation'.
77 As Brennan J observed in Suttling, the terms of each teachers' contract must have been consistent with the scheme of the applicable Teaching Service Act.
No express terms
78 The various contractual documents in evidence did not document the rights here claimed by the Federation. There was no reference there made to the Procedures in force at the time when the teachers were each first permanently appointed to the Teaching Service, either in the document by which that appointment was made, or in any other contractual document. Nor was there any reference there made to the agreement in relation to transfers between the Director-General and the Federation by which the teachers were bound on appointment, given the provisions of s 14 (2) of the Teaching Service Act. This was not a case of express incorporation of the terms of a policy document into a contract of employment, such as the situation considered by the Federal Court in Goldman Sachs JB Were Services Pty Limited v Nikolich (2007) 163 FCR 62.
Implied terms
79 The Federation's case was that publication of the Procedures documents was sufficient to give them contractual force, so long as the teachers continued in employment. While the Federation accepted that it had to demonstrate offer by the Director-General, acceptance by the teacher and consideration, it argued that the communication of the Procedures to the teachers and the act of continuing employment was sufficient. In making its argument the Federation relied on the approach of Phillips J in Ajax Cooke Pty Ltd t/as Ajax Spurway Fasteners v Nugent (1993) 36 AILR 231 and Connell J in Lee v GEC Plessey Telecommunications [1993] IRLR 383.
80 The Federation's reliance on the approach there adopted, given the evidence in this case as to the teachers' reliance on the transfer system in their careers, was understandable. These cases were not, however, concerned with employment contracts made in accordance with a statutory scheme such as that here in question, but rather with a redundancy agreement made with a union, which employees employed pursuant to common law contracts of employment, were later informed was to apply to their employment. In considering whether the approach urged by the Federation is available, the impact of the statutory scheme which governs the teachers' employment may not be ignored.
81 By way of analogy, the Federation also relied on the decision of the Full Bench of the former Industrial Commission of New South Wales in Public Service Board (New South Wales) v Public Service Association (New South Wales) Re Steele (1987) 17 IR 286 at 293-7, to argue that the statutory scheme left open the possibility that the claimed contractual terms were agreed. That case concerned the question of the former Commission's power to make an award in respect of the subject of transfer of public servants, having in mind the express provisions of the Public Service Act 1979, as to that matter in ss 112 and 115 and the general provisions in s8, preserving the provisions of the Industrial Arbitration Act 1940. The Federation's case was that given the scheme of the Teaching Service Act, the Department and its teachers were free to contract in relation to service transfers, where the contracts did not contradict any express provision in the applicable statutory scheme, or where the contract fleshed out or complemented the statutory scheme.
82 Assuming for the moment that this is a correct characterisation of what the Procedures which the Federation claims were incorporated into the three contracts of employment sought to achieve, that is a 'fleshing out' or 'complementing' of the statutory scheme, it is still necessary to consider whether the evidence establishes that the claimed contractual agreements were made.
83 For his part, the Director-General argued that the statutory scheme did not permit of the contractual terms claimed and that there was, on the evidence, no basis for concluding that there had ever been any intention on his part, to make the contract claimed with the three teachers.
84 Was there evidence of such an intention? Certainly in each case the Department communicated the Procedures to the teachers, thereby giving effect to the agreements which had been made with the Federation and which thus bound the teachers upon employment. Could it have been intended that such communication would give the Procedures contractual force? As the Director-General argued, if that were a correct view of what had occurred, logically it would follow that the Director-General had reached such an agreement with each of the teachers employed in the Teaching Service and that upon each new agreement being reached with the Federation, and new Procedures then being published to give effect to that agreement, each teacher had the right to accept or reject what the new Procedures proposed, by way of variation to their individual contract.
85 It is immediately apparent that this would have been a curious thing for the Director-General to have done. Firstly, under the statutory scheme it would have been entirely unnecessary, given that the teachers were all, in any event, bound by the terms of the agreement made between the Director-General and the Federation. Had there been any departure between the agreement and the Procedures, the teachers and the Director-General would have been bound by the agreement, in any event. Further, had the Procedures been given contractual force, it would have meant that the Director-General would have remained contractually bound by what had been agreed with the Federation, even after that agreement had come to an end. There was no evidence from which it could be concluded that this was what had been intended by the Director-General, when publishing the Procedures, or indeed that it had ever been contemplated, or considered.
86 If what the Federation claimed was a correct view of what occurred, the result would have been that the expiry of the 2005 agreement with the Federation in April 2008, would not have deprived the three teachers of their ongoing contractual rights to the benefits conferred upon them by the 2005 Procedures. For the teachers, that was no doubt an attractive outcome, given the changes which the Director-General made in 2008 to the Department's transfer system and the impact which that change has had on the teachers' expectations. Given how the teachers arranged their careers over the years, having regard to the three transfer points which the Director-General's agreements with the Federation ensured they would have, that they seek that outcome in these proceedings, is not surprising.
87 These proceedings are not, however, concerned at all with the fairness of what has occurred, or even the fairness of the individual teachers' contracts, as was the case in Gillies v Health Administration Corporation [2003] NSWIRComm 243, to which reference was made by the parties. The question which must be determined in this case is whether, in truth, the 2005 Procedures ever became a term of the three teachers' contracts and what effect the introduction of the 2008 policy had.
88 So approached, it becomes apparent that under this statutory scheme, there was a real unlikelihood of any intention, on the part of the Director-General, on appointment to enter into contracts of employment with the Department's teachers, to incorporate as an express term, the Procedures by which the agreements made from time to time with the Federation in relation to the transfer system, were to be implemented. Or that it was intended, to incorporate into the teachers' contracts, the new Procedures, which were published, following upon the making of new agreements between the Director-General and the Federation, the last of which was the 2005 Procedures.
89 There was no necessity at all for such contracts to be made. What purpose would they have served? Certainly there was an obligation imposed on the Director-General by the Regulation, to inform staff of their 'statutory conditions of service'. No doubt there were also good practical reasons for informing them as to the mechanisms by which the 2005 agreement and its predecessors would be implemented, but there was no necessity at all, for entering into a contract with the teachers in relation to what was contained in the 2005 Procedures document.
90 To the contrary, the teachers were, by force of s 14 of the Act, already bound by the 2005 agreement which the Director-General had reached with the Federation, superseding as it did, what had been agreed in 2002. The teachers could not complain about the terms of such an agreement. The difficulty with the Federation's argument was evidenced by the submission advanced in reply, that: