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[2008] NSWIRComm 218
Industrial Relations Commission (NSW)
2008-10-23
Schmidt J
Original judgment source is linked above.
CITATION: New South Wales Teachers Federation and Director-General of Education and Training (No 2) [2008] NSWIRComm 218
NEW SOUTH WALES TEACHERS FEDERATION Applicant PARTIES: DIRECTOR-GENERAL OF EDUCATION AND TRAINING Respondent
CATCHWORDS: Declaratory relief - three teachers appointed to permanent teaching positions - whether or not teachers have contractual entitlements in relation to service transfers between Departmental schools - priority of service transfers over the employment list and external advertisements - nature of employment considered - teachers are common law employees - express contractual terms - implied contractual terms - the Teaching Service Act 1980 considered - custom and practice - declaratory relief refused - contractual entitlements not established
Industrial Arbitration Act 1940 LEGISLATION CITED: Industrial Relations Act 1996 Teaching Service Act 1980 Teaching Service Regulation 2007
Ajax Cooke Pty Ltd t/as Ajax Spurway Fasteners v Nugent (1993) 36 AILR 231 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Director-General of Education v Suttling (1987) 162 CLR 427 CASES CITED: Gillies v Health Administration Corporation [2003] NSWIRComm 243 Goldman Sachs JB Were Services Pty Limited v Nikolich (2007) 163 FCR 62 Lee v GEC Plessey Telecommunications [1993] IRLR 383 Riverwood International Australia Pty Ltd v McCormick (2000) 177 ALR 193 State of New South Wales v Paige (2002) 60 NSWLR 371 Public Service Board (New South Wales) v Public Service Association (New South Wales) Re Steele (1987) 17 IR 286
HEARING DATES: 23 October 2008, 24 October 2008
APPLICANT: Mr S Crawshaw SC with Mr M Gibian of counsel LEGAL REPRESENTATIVES: RESPONDENT: Mr R Kenzie SC with Mr T Dixon of counsel
NEW SOUTH WALES TEACHERS FEDERATION AND DIRECTOR-GENERAL OF EDUCATION AND TRAINING
Application by New South Wales Teachers Federation for declaratory relief under section 154 of the Industrial Relations Act 1996
1 In these proceedings the New South Wales Teachers Federation ('the Federation') seeks declaratory relief on behalf of three teachers appointed to permanent teaching positions, Carl Murphy, Melissa Wyper and Michael de Wall. The claims raise the question of whether or not these teachers have certain contractual entitlements in relation to service transfers between Departmental schools. The position of the Director-General of Education and Training is that no such contractual rights exist. 2 The declarations sought are:
That it is a term of each of the contracts of employment of Carl Murphy, Melissa Wyper and Michael de Wall ("the teachers"), being teachers that are employed by the Respondent, that: (a) The teachers have earned and accumulated transfer points, and are entitled to earned and accumulate transfer points, for service at schools, in accordance with the allocation of points set out in the Directory of New South Wales Department of Education and Training .
(b) Upon making an application for a transfer, the teachers are entitled to be given priority in appointment to fill vacant positions by way of service transfer before the position is filled from the employment list or by way of external advertisement if: (i) they have at least three years service in their current position;
(ii) they satisfy the academic requirements for the position and have the ability to meet the curriculum and educational needs of the position;
(iii) they have more transfer points than any other service transfer applicant. ALTERNATIVE DECLARATION That it is a term of each of the contracts of employment of Carl Murphy, Melissa Wyper and Michael de Wall ("the teachers"), being teachers that are employed by the Respondent, that: (c) The teachers have earned and accumulated transfer points, and are entitled to earn and accumulate transfer points, for service at schools, in accordance with the allocation of points set out in the Directory of New South Wales Department of Education and Training .
(d) Upon making an application for a transfer, the teachers are entitled to be given priority in appointment to fill vacant positions by way of service transfer before the position is filled by way of external advertisement if: (i) they have at least three years service in their current position;
(ii) they satisfy the academic requirements for the position and have the ability to meet the curriculum and educational needs of the position;
(iii) they have more transfer points than any other service transfer applicant.
The Teachers 3 The circumstances in which the declarations came to be sought can be shortly described. Mr Murphy began employment with the Department as a casual teacher in 1994 at Canley Vale High School and is now employed as a permanent teacher at Campbelltown High School, having first received a permanent appointment in 1999. Ms Wyper commenced employment as a temporary teacher in 2003 at Gilgandra High School and later in 2004 became a permanent teacher. She currently works at Narrabri High School. Mr de Wall commenced employment in 1995 as a permanent teacher, working at Colyton High School and Wyndham College. He later took leave without pay, while he studied for a masters degree, but still worked as a casual at those schools. In 2001, he worked as a permanent careers adviser at Chifley College, Mount Druitt Campus and from 2004, as an English teacher at Chifley College Senior Campus. These schools were all Departmental schools.
The system of service transfers 4 The claims arise in the context of a system of service transfers operated by the Department for staffing its schools, of which there are more than 2,000. Prior to 1987, transfers were dealt with by Teaching Service Regulations, information about which was given to teachers through the Department's Handbook and the Education Gazette. The transfer points system was first introduced in 1987, after consultation with the Federation. The system was altered by the Department over time, with changes generally published in the Education Gazette. Later changes reflected agreements made between the Director-General and the Federation in 1993, 1997, 2002 and 2005. In 2008, the Department and the Federation were unable to reach a new agreement. The 2005 agreement expired and the Department then again altered the transfer system, introducing new procedures which commenced to operate at the beginning of term II 2008, upon the expiry of the 2005 agreement. 5 The aspect of the new procedures which gave rise to these proceedings was the change to the priority given to service transfers. Under the system, Departmental schools listed in the Directory of New South Wales Department of Education and Training, are allocated transfer points, depending on various factors such as the school's geographical location, or a range of other factors which make them more difficult to staff. Teachers who work in those schools gain transfer points by their service. In the past, this has made appointment to such schools more attractive to teaching staff, because once sufficient points had been earned, the teachers gained the right to seek a 'service transfer'. Such applicants were given certain priority under the system, which altered from time to time, reflective of the agreements made by the Director-General and the Federation. The points which service at particular schools attracted, also changed over time, with schools opening, closing, merging and in 2000, with the Department and the Federation reaching agreement on a substantial number of changes to the points of particular schools. 6 Under the 2005 agreement between the Director-General and the Federation, it was provided in Part One 'Overview of filling vacant positions':
Classroom teacher vacancies will be filled in the ways outlined below. In filling substantive classroom teacher vacancies, the School staffing Unit will provide the highest priority for the placement of priority transfers. The importance of service transfers and recruitment of quality teachers in achieving an equitable distribution of teachers to ensure that students have the opportunity for quality education wherever they live is recognised.
Classroom teacher positions not filled through priority transfer, service transfer, the Permanent Employment Program, special fitness appointment or through a mix of resumption duty from leave, the Graduate Recruitment Program, scholarship holders, teachers completing targeted training programs, or from the employment list, will be externally advertised and filled by merit.
A Full-time and permanent part-time positions v Priority transfers: · Nominated transfers in the case of school closures, amalgamations, reclassification of schools, reduction in student numbers, changed curriculum needs or following completion of a non school based temporary appointment, and above establishment appointment or a fixed term special fitness appointment · Transfers made under the Aboriginal or Torres Strait Islander Transfer Scheme · Incentive transfers for classroom teachers who have served the required number of years in eight, six or identified four point schools · Transfers approved on recognised compassionate grounds · Transfers for classroom teachers who have served the required number of years in community care schools serving juvenile justice centres and special schools/classes/units v Aboriginal or Torres Strait Islander Employment Program
v Permanent Employment Program - Temporary or Casual teachers
7 Positions to be filled by advertisement, was dealt with in Part Five, Applying for an advertised position:
Classroom teacher positions not filled through priority transfer, service transfer, the Permanent Employment Program, special fitness appointment or through a mix of resumption of duty from leave, the Graduate Recruitment Program, scholarship holders, teachers completing targeted training programs, or from the employment list, will be externally advertised and filled by merit.
8 After reaching agreement with the Federation, the Department also published a Procedures document, which explained how the transfer system operated, which was provided to teachers. These procedures reflected what had been agreed. The 2005 agreement came to an end in 2008. 9 In 2008, the Department wished to give schools more autonomy in appointment of their teaching staff. When no agreement was able to be reached with the Federation, the Department published a new Procedures document to advise staff of the changes it had made to the transfer system. Thereby the priority given to service transfers under the 2005 agreement was altered, so that they no longer had the former priority over advertisements of positions. As a result, schools are now able to decide whether to take a service transfer for a vacant position or to advertise the position. Teachers may apply for an advertised position, but even if they have the necessary service points, they are given no advantage over anyone else who responds to the advertisement, subject to a transitional arrangement. The 2008 Procedures thus provide in Part One, 'Overview of filling vacant positions':
Permanent full-time and permanent part-time classroom teacher vacancies will be filled in the ways outlined below.
Classroom teacher positions will be filled in the first instance by priority transfer. The position is then considered by Staffing Services for filling by Aboriginal or Torres Strait Islander employment, resumption of duty or teachers completing targeted recruitment programs. Where a positions not filled in these ways, the school selects whether it will be filled by advertisement or from the service transfer*, graduate recruitment or employment lists.
*Until the beginning of term 2, 2010, teachers who had an active service transfer application as at 13 April 2008 will be considered for appointment before a position can be filled by advertisement or from the service transfer, graduate recruitment or employment lists. Where a service transfer applicant matches the position, the teacher will be appointed if the last vacant position at that school was not filled through service transfer. The teacher is not automatically appointed if the last vacant position was filled through service transfer. In this case, the school chooses form a suite of options to fill the position, one of which is service transfer. 10 In Part Five, 'Applying for an advertised position', the new Procedures specify:
Classroom teacher positions will be filled in the first instance by priority transfer. The position is then considered by Staffing Services for filling by Aboriginal or Torres Strait Islander employment, resumption of duty or teachers completing targeted recruitment programs.
Where a position is not filled in these ways, the school selects whether it will be filled by advertisement or from the service transfer*, graduate recruitment or employment lists.
*Until the beginning of term 2, 2010, teachers who had an active service transfer application as at 13 April 2008 will be considered for appointment before a position can be filled by advertisement or from the service transfer, graduate recruitment or employment lists. Where a service transfer applicant matches the position, the teacher will be appointed if the last vacant position at that school was not filled through service transfer. The teacher is not automatically appointed if the last vacant position was filled through service transfer. In this case, the school chooses from a suite of options to fill the position, one of which is service transfer.
Note : Where a classroom teacher position as advertised, the teacher on the service transfer list whole matches the position and has the highest transfer points will be contacted and invited to apply. If an application is submitted, the teacher is guaranteed an interview for the position.
The Federation's claims 11 It was claimed by the Federation that the three teachers had each taken up and/or remained in positions at particular schools, relying on the Department's representations to them, that their service in those schools and the transfer points it would accumulate, would in future entitle them to priority in appointment to vacant positions for which they might apply in another school or area, over other applicants, who had not accumulated such points. The result was that the Procedures which the Department had published from time to time, had become express terms of their contracts of employment. The changes to the system introduced when new Procedures were published by the Department, following agreements reached with the Federation, had been accepted by the teachers, with the result that their contracts of employment had been varied. In 2008, there was no such acceptance of the newly published Procedures. The Department was thus not entitled to unilaterally introduce new Procedures which had not been accepted by the teachers, given their existing contractual entitlements in accordance with the 2005 Procedures. 12 It was thus claimed that:
a) Mr Murphy, Ms Wyper and Mr de Wall have earnt and accumulated transfer points, and are entitled to earn and accumulate transfer points for service at schools, such points to vary according to the school, as set out in the Directory of New South Wales Department of Education and Training.
b) Upon making an application for a transfer, Mr Murphy, Ms Wyper and Mr de Wall are entitled to be given priority in appointment to fill vacant positions, by way of service transfer before the position is filled from the employment list or through external advertisement if: i) they have at least three years' service in their current position; ii) they satisfy the academic requirements for the position; iii) they have more transfer points than any other service transfer applicant. The statutory scheme under which the teachers are employed 13 The Federation's case that the claimed contractual rights exist, must be resolved on the evidence, having regard to the statutory scheme under which the three teachers are employed. It is thus convenient to deal with the statutory scheme at the outset. 14 The Director-General's role as to employment of teaching staff is dealt with in s 12 of the Teaching Service Act:
12 Role of Director-General in industrial proceedings
(b) any proceedings relating to members of the Teaching Service held before a competent tribunal having power to deal with industrial matters,
taken to be the employer of those members. 15 Otherwise, the Director-General's responsibilities and functions under the Teaching Service Act are: 6 General responsibility (1) The Director-General is responsible to the Minister for the general conduct and the efficient, effective and economical management of the functions and activities of the Teaching Service. (2) For the purpose of exercising that responsibility, the Director-General may take such action as the Director-General considers appropriate in the circumstances. (3) Nothing in this section limits or affects the operation of section 14 of the Public Sector Employment and Management Act 2002. 7 General functions (1) The Director-General has the following functions: (a) to classify the schools in which members of the Teaching Service are employed, (b) to determine the staff positions in the Teaching Service (including the teaching positions in schools), (c) to determine the method of classifying and grading officers employed in the Teaching Service, (d) to determine the qualifications required for appointment to the Teaching Service, (e) to prepare and maintain a list of persons who the Director-General determines are not to be employed in the Teaching Service, (f) to maintain discipline in the Teaching Service. (2) Subsection (1) does not limit the functions that are conferred or imposed on the Director-General by or under this Act.
16 The three teachers were each appointed to the Teaching Service, in respect of which s 44 of the Teaching Service Act, provides: 44 The Teaching Service (1) The Teaching Service of New South Wales consists of the persons who are for the time being employed under this Division. (2) Those persons are taken to be employed by the Government of New South Wales in the service of the Crown, except as provided by section 12. (3) This Division does not affect any other method (statutory or otherwise) by which a person holds a position, or is otherwise employed, in the Teaching Service. 17 The three teachers were appointed in accordance with s 47 of the Teaching Service Act, which provides: 47 Appointments to positions generally (1) The Director-General may, subject to section 47A, appoint to positions in the Teaching Service such persons who, in the opinion of the Director-General, have the appropriate qualifications to be employed in the Teaching Service. (1A) Where: (a) an appointment to a position in the Teaching Service (other than a senior position) is to be made under subsection (1), and (b) an Aboriginal and a person who is not an Aboriginal, each of whom is eligible to be appointed to the position, are offering themselves for appointment to the position, the Director-General shall give preference to the Aboriginal or, if there are 2 or more such Aborigines, give preference to any one of them by appointment to that position. (2)-(5) (Repealed)
18 Elsewhere in the Act, teachers are described as 'officers of the Teaching Service', with s 78 providing: 78 Vacation of position
An officer of the Teaching Service shall be deemed to have vacated the officer's position if: (a) the officer dies, or (b) the officer resigns the officer's position by writing signed by the officer and delivered to the Director-General and the officer's resignation is accepted by the Director-General.
19 The word 'officer' is defined in s 3 as 'officer means a person employed in the Teaching Service other than as a temporary employee'. Other relevant definitions include: position includes office
Teaching Service means the Teaching Service of New South Wales referred to in section 44 20 It follows that when each of the three teachers were permanently appointed, they each were appointed to a position in the Teaching Service. 21 Unlike earlier procedures, the Promotion and Transfer Procedures for School Teachers issued in 2008, was not underpinned by any agreement with the Federation. Such agreements had been made in 1993, 1997, 2002 and 2005. The 2005 agreement records that it was made in accordance with the provisions of s 14 of the Teaching Service Act 1980, which provides that:
(1) The Director-General may enter into an agreement with any association or organisation representing any group or class of officers or temporary employees as to any industrial matter.
(2) Any such agreement binds all officers and temporary employees in the class or group affected by the agreement and no such officer or temporary employee, whether a member of the association or organisation with which the agreement was entered into or not, has any right of appeal against the terms of the agreement. 22 The term 'industrial matter' is defined in s 10 as: 10 Definition
industrial matters has the same meaning as in the Industrial Relations Act 1996, subject to the following modifications:
(a) the references to "employers" and "their employer" are to be construed as references to the Crown,
(b) the references to "employees" are to be construed as references to members of the Teaching Service,
(c) the references to "any industry" and "an industry" are to be construed as references to the Teaching Service.
23 In the Industrial Relations Act 1996 ('the Act'), the term 'industrial matter' is defined in s 6 as:
In this Act, industrial matters means matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry.
(a) the employment of persons in any industry (including the employment of minors, trainees, apprentices and other classes of employees),
(b) the remuneration (including rates of pay, rates for piece-work and allowances) for employees in any industry,
(c) the conditions of employment in any industry (including hours of employment, qualifications of employees, manner of work and quantity of work to be done),
(d) part-time or casual employment (including part-time work agreements),
(e) the termination of employment of (or the refusal to employ) any person or class of persons in any industry,
(f) discrimination in employment in any industry (including in remuneration or other conditions of employment) on a ground to which the Anti-Discrimination Act 1977 applies,
(g) procedures for the resolution of industrial disputes,
(i) the authorised remittance by employers of membership fees of industrial organisations of employees,
(j) the surveillance of employees in the workplace,
(k) the mode, terms and conditions under which work is given out, whether directly or indirectly, to be performed by outworkers in the clothing trades. 24 The term 'conditions of employment' is defined in the Dictionary to the Industrial Relations Act as 'includes any provisions about an industrial matter'. There was no issue between the parties that the various agreements made by the Director-General and the Federation, in relation to the transfer system, were agreements about an 'industrial matter'. 25 The Teaching Services Act makes no provisions as to the term which any agreement made under s 14 must have. That is a matter for the Director-General and the Federation to agree. Unlike the Industrial Relations Act, there is no provision such as that made in s 16, which specifies that an award must have a nominal term of at least 12 months and not more than three years and even after its nominal term, that it continues in force until rescinded by the New South Wales Industrial Relations Commission. Nor does it make provisions such as is made in s 42 of the Industrial Relations Act, that requires an enterprise agreement to have a nominal term no longer than three years, but that after expiry of its nominal term, such an agreement continues in force until it is terminated in accordance with the notice provision in s 44. 26 It follows that an agreement made under s 14 of the Teaching Service Act may have a specified term, at the expiry of which the agreement comes to an end. In this case, it was expressly agreed by the parties that the 2005 agreement would come to an end at the beginning of term 2, 2008. 27 The Department's transfer system had predated the first agreement between the parties. The Department issued advice to teachers about its transfer system from time to time, including its 1987 Procedures and then again in 1990. It was common ground that the Procedures which the Director-General issued in 1993, 1997, 2002 and 2005 gave effect to the agreements which had been reached with the Federation in those years. Whether or not the Procedures were 'conditions of employment' determined by the Director-General in accordance with the provisions of s 13 of the Teaching Service Act, also arises for consideration. Section 13 provides:
(1) Except in so far as provision is otherwise made by law, the conditions of employment, including salaries, wages or other remuneration, of members of the Teaching Service are to be determined from time to time by the Director-General.
(2) This section does not apply in relation to the remuneration of, or allowances payable to, senior executive officers in the Teaching Service. 28 In that context, the status of the 2008 Procedures, which was not underpinned by any agreement with the Federation under s 14 of the Teaching Service Act, also arises particularly for consideration. The 2005 agreement came to an end in April, at the beginning of term 2, 2008. The new 2008 Procedures then came into force. This is a matter to which I will return below. 29 Note must also be taken of the Teaching Service Regulation 2007, which provides, that: 4 Compliance with statutory conditions of service (1) All members of the Teaching Service must acquaint themselves with the statutory conditions of service. (2) The Director-General is to make available to all members of the Teaching Service copies of the following documents in a reasonably accessible form: (a) the Act, (b) this Regulation, (c) all determinations under section 13 of the Act in relation to members of the Teaching Service. (3) A member of the Teaching Service who is in charge of a school must report to the Director-General any breach of the statutory conditions of service that comes to the member's knowledge. (4) It is sufficient compliance with subclause (2) if the documents are available on the Internet or the Department's Intranet. 30 The term 'statutory conditions of service' is defined in the Regulation as:
statutory conditions of service means the provisions of: (a) the Act, or (b) this Regulation, or (c) any determination under section 13 of the Act, that impose duties on members of the Teaching Service. 31 In s 13 of the Teaching Service Act, the phrase used is 'condition of employment', a term which is not there defined. The term 'statutory conditions of service' used in the Regulations encompasses determinations made under s 13 of the Act. The terms of any applicable award made in accordance with s 10 of the Industrial Relations Act and any agreements made under s 14 of the Teaching Service Act, are not there referred to and thus do not fall within the term 'statutory conditions of service', but they are each industrial instruments enforceable in accordance with the provisions of the Industrial Relations Act. 32 Agreements made under s 14 of the Teaching Service Act in relation to 'any industrial matter' are also 'public sector industrial agreements' under the Industrial Relations Act (see s 8 definition of industrial instrument and the Dictionary to the Act, where 'public sector industrial agreement' is defined to include agreements made under s 14 of the Teaching Service Act). 33 Chapter 7 Enforcement, of the Industrial Relations Act establishes a regime whereby an industrial court may deal with breaches of industrial instruments, which includes awards and public sector industrial instruments, including agreements made under s 14 of the Teaching Service Act. Industrial courts may make orders requiring payment of amounts outstanding under such instruments, as well as imposing civil penalties for any breach of such instruments. 34 Here at issue between the parties, given this statutory regime, is the status of the 2005 and 2008 Promotion and Transfer Procedures for School Teachers. Of relevance to that consideration, was whether or not the policies had the status of determinations made by the Director-General under s 13 of the Teaching Service Act, as well as whether the 2005 Procedures and those which preceded them, can have achieved the contractual status claimed by the Federation.
35 Each teacher gave affidavit evidence and was not required for cross examination.
Mr Murphy 36 Mr Murphy had first been given information about the transfer system, by a Union Educator/Officer, while he was studying at the University of Sydney, before he commenced work as a teacher. The Department also gave students documents, which described the transfer points policy. The documents were not expressly identified and were not in evidence. Mr Murphy had family members who were teachers and also had an awareness from them, as to how the system worked. 37 When Mr Murphy accepted a casual position at Canley Vale High School in 1993, he was aware that it was a 2 point school. This was a consideration for him in accepting the position. In 1998, Mr Murphy was appointed to a permanent position, at which time the 1997 agreement between the Federation and the Director-General, was in force. It and the Department's Procedures then commenced to apply to him. In 2000, he was appointed to Miller High School in Liverpool. In 2000, he entered a retraining contract, retraining as an industrial arts teacher. This contract required him to work at a 'hard to staff' school for three years and in 2001, he was transferred to Campbelltown High School, another 2 point school, where he was obliged to remain until the end of 2003. 38 Mr Murphy received copies of the Department's Policy and Procedures Book published by the Department, from time to time. They were provided by the District Office, to be given by schools to teachers. He kept a copy at home. He also received copies of the Promotion and Transfer Procedures which the Department published. 39 In more recent years, teachers were given access to this material on the Department's website, where there was also an online calculator to allow teachers to calculate how many transfer points they had earned. Mr Murphy always kept a track of his own points. Mr Murphy was a Federation representative and also had to use these documents, in order to answer staff questions. 40 Mr Murphy currently has 24 points, which he intended to use to further his career in one of four schools on his active transfer list, at Goulburn, Mulwaree, Moss Vale and Bowral. He remained at Campbelltown for eight years, in order to maximise his chance to transfer and would not have remained there, if it were not for the transfer system. 41 In 2002, Mr Murphy was offered a position at a Catholic school which he declined, after considering the impact on his transfer points and his ability to pursue a position in the area in which he wished to live. Mr Murphy has an active transfer, to which the transitional provisions of the 2008 policy applies.
Ms Wyper 42 Ms Wyper's evidence was that she commenced her employment in 2003 as a temporary teacher at Gilgandra High School, after completing her degree. During her studies, students were provided with information by the Department about staffing of rural and remote schools and the advantages of working in hard to staff schools. It was repeatedly advised that it was difficult to get a permanent position in popular areas and that transfer points could be gained by working for a few years in a rural area, to earn the right to transfer to Newcastle, or wherever else you wished. Students were provided with copies of the relevant Departmental policies, which explained the incentives for working at rural and remote schools, particularly the transfer points which could be earned. 43 Ms Wyper attended school and university in Newcastle and intended eventually to settle there, or in the Maitland or Lake Macquarie areas. In April 2003, she participated in the 'Beyond the line' programme, under which Bachelor of Education students were taken by the Department on a tour of rural schools, to allow them to see what it would be like to work in a hard to staff rural school. Later she was contacted by the Principal of Gilgandra High School about a temporary position in term 4. The Principal could not fill the position and could not get a casual. Ms Wyper took the position, being given casual approval by the Department to take up the offer. 44 When Ms Wyper completed her application for employment with the Department, she had nominated Newcastle, Maitland and Lake Macquarie as the areas where she wished to teach. Knowing that she was unlikely to get a position there immediately, she had also listed six schools in rural areas where she could earn 4 or 6 points, having identified the applicable points from the Department's documents. She wanted to accrue sufficient points to enable her to transfer to Newcastle, Maitland or Lake Macquarie in a few years. 45 Towards the end of 2003, Ms Wyper was offered a permanent position at Narrabri, a 4 point school, which she accepted. In 2004, the 2002 Department's agreement with the Federation and the Procedures document thus came to apply to her employment. She understood from the documents that the calculation of points earned was straightforward and that if she worked at a 4, 6, or 8 point school she could subsequently choose where she wished to teach. She was able to check her points online, using a staff portal, or by telephone. By the end of 2008, Ms Wyper will have earned 16 points. In 2007, she submitted a transfer application, seeking a transfer to Maitland. She withdrew the application, after a change in her personal circumstances, intending now to remain in Narrabri for two more years. 46 Ms Wyper would not have left the area where she grew up, to teach in the North West, but for the opportunity to earn transfer points. She would have stayed in Newcastle taking temporary positions, until she was offered a permanent placement in one of the areas she wished to work. But for the transfer system, she would not have accepted appointment in Narrabri.
Mr de Wall 47 After completing his studies in 1994, Mr de Wall obtained a targeted graduate appointment at Colyton High School in St Marys, a two point school, in 1995, being then appointed to a permanent position. The 1995 agreement between the Federation and the Department and the Departmental Procedures thus applied to him. 48 In 1998, Mr de Wall took leave without pay, to undertake studies in a masters degree, but he continued performing casual relief teaching. Upon his return to service in 2001, he took a position as a careers adviser at Chifley College, Mount Druitt Campus, undertaking Departmental retraining. 49 In 2004, he was appointed to an English teacher's position at Chifley College Senior Campus, pursuant to an agreement between the Department and the Federation, concerning college staffing processes. It is a four point school. 50 Mr de Wall could not recollect how he first became aware of the transfer system, but thought it was from other staff. Transfer points, on his evidence, is part of 'teacher culture' and is understood and discussed as a condition of service. It was common for teachers to ask each other how many points their schools were worth. 51 At Colyton, Mr de Wall had heard more experienced teachers discussing their points and how they planned to use them in future. Many teachers transferred out of the St Marys/Mount Druitt area, once they had accumulated sufficient points, to obtain a service transfer. 52 Mr de Wall kept himself aware of his transfer points, seeking to ensure that the decisions he made in furthering his career, did not affect his accumulated points. He consulted Departmental polices and sought advice from Federation representatives and head teachers at the schools at which he was teaching. 53 Mr de Wall's plan was to use his accumulated points to move to the North Coast area. His daughter had moved to Murwillumbah a few years ago and his partner is a head teacher. He had the expectation that his accumulated points would allow him to transfer to a position in the North Coast. The 2008 Procedures dramatically reduced the likelihood of him achieving a service transfer in future. This meant his planned move was now much less likely to be a viable option.
Mr Irving 54 Mr Irving, the General Secretary of the Federation, gave evidence of the history of the Procedures issued by the Department and how the transfer system evolved.
Ms Shearer 55 Ms Shearer, the former Assistant Director Staffing Services, prior to her retirement, gave evidence of the history of the agreements reached between the Department and the Federation in relation to the Department's transfer system; how teachers were employed and how the transfer system operated.
Documents 56 The various policies and agreements were in evidence, as was a proforma appointment notice. None of the contractual documents make reference to the transfer system, the agreements between the Director-General and the Federation; or the Procedures which were here claimed to have become express terms of each teachers' contract. The award
57 It was also common ground that the teachers' employment attracted the provisions of an award, but that it did not deal at all with the question of transfers, or the contractual rights claimed. The award was not in evidence. Were the teachers employed by the Director-General pursuant to common law contracts of employment? 58 It was initially the Director-General's case that the Federation's application must fail, because the teachers were not employed pursuant to common law contracts of employment, thus no question of incorporation of the transfer policies into such contracts, could arise. That argument was finally not pressed, it being conceded that under the statutory scheme, a teacher appointed to the Teaching Service, could be employed under a contract of employment. 59 It was the position of the Federation that given the concession, the position in this case was no different to that in State of New South Wales v Paige (2002) 60 NSWLR 371, where the Department had made a similar concession. Given the declarations sought by the Federation and how they were resisted by the Director-General, in my opinion some view must nevertheless be reached about the question of whether or not the contracts in respect of which declaratory relief is sought, in fact, exist. 60 I take the view that the Director-General's concession was properly made in this case, particularly having regard to the evidence led by the Director-General from Ms Shearer which included, for example that 'The provisions for employment of members of the Teaching Service are contained in the Teaching Service Act, 1980' and that current appointment letters direct teachers to the 'Employment with us' section of the Department's website. 61 The argument that there was no contract, was initially advanced by reference to the High Court's judgment in Director-General of Education v Suttling (1987) 162 CLR 427, where Brennan J observed at 437:
Members of the Service are appointed pursuant to the Act and their rights must be ascertained by reference to its provisions. The relationship between a civil servant of the Crown and the Crown has often been described as contractual, though the civil servant has been appointed pursuant to statute: see, eg, Gould v Stuart [1896] AC 575, at p 577; Carey v The Commonwealth [(1921) 30 CLR 132, at p 137; Lucy v The Commonwealth (1923) 33 CLR 229, at pp 238, 249, 253. However, the contractual nature of the relationship has not been universally accepted: see, eg, Monckton v The Commonwealth (1920) 27 CLR 149, at pp 155, 156; Lucy v The Commonwealth (1923) 33 CLR, at p 244; Geddes v Magrath; Morgan v Geddes (1933) 50 CLR 520, at pp 533- 534; The Commonwealth v Welsh (1947) 74 CLR 245, at pp 262, 274; and cf Ryder v Foley (1906) 4 CLR 422, at 440. And sometimes an espousal of one view rather than the other has been avoided: see, eg, Reilly v The King [1934] AC 176, at p 180; Kodeeswaran v Attorney-General (Ceylon) [1970] AC 1111, at p 1118. If the relationship is contractual, the contract must be consistent with any statutory provision which affects the relationship. No agent of the Crown has authority to engage a servant on terms at variance with the statute. To the extent that the statute governs the relationship, it is idle to inquire whether there is a contract which embodies its provisions. 62 It was also argued that the Court of Appeal's judgment in Paige, did not support the conclusion that the employment of a teacher was governed by a contract of employment, because that case had proceeded on the basis of a concession that there was a relevant contract in existence, although its terms were not identified. Reference was made to the observation of Giles JA, that there 'was not a jot of evidence to establish the terms and conditions of the contract of employment' (at 423). 63 The concession in Paige meant that there was no question raised in that case, that the teacher who had been appointed pursuant to the provisions of the Teaching Service Act, was employed pursuant to a common law contract of employment. Presumably that concession would not have been made, if in truth there was no such contract, a matter entirely within the Director-General's knowledge and indeed, control. 64 Such a concession seems unsurprising. It is consistent with a long standing history of award regulation of the Department and those who teach in its schools. Such awards are made by the New South Wales Industrial Relations Commission, under the Industrial Relations Act. Such awards govern the conditions of employment of teachers employed by the Director-General. In this case, it is the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2006, which applies to the three teachers, albeit the parties agree that it does not make any relevant provision, so far as the question of service transfers is concerned. It seems to me that the very fact of the existence of that award, reflects an acceptance by the Director-General that the teachers who hold positions in the Teaching Service are employees in the common law sense. 65 This follows from the provisions of s 10 of the Industrial Relations Act, which empower the Commission to make awards 'setting fair and reasonable conditions of employment for employees'. The word 'employees' is defined in s 5 as: 5 Definition of employee (1) General definition In this Act, employee means: (a) a person employed in any industry, whether on salary or wages or piece-work rates, or (b) any person taken to be an employee by subsection (3). (2) A person is not prevented from being an employee only because: (a) the person is working under a contract for labour only, or substantially for labour only, or (b) the person works part-time or on a casual basis, or (c) the person is the lessee of any tools or other implements of production, or (d) the person is an outworker, or (e) the person is paid wholly or partly by commission (such as a person working in the capacity of salesperson, commercial traveller or insurance agent). (3) Deemed employees The persons described in Schedule 1 are taken to be employees for the purposes of this Act. Any person described in that Schedule as the employer of such an employee is taken to be the employer. (4) Exclusion A person employed or engaged by his or her spouse, de facto partner or parent is not an employee for the purposes of this Act. 66 The word 'employed' is not defined in the Industrial Relations Act. It has its ordinary meaning. As the High Court observed in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 420, the employment relationship 'is contractual in origin'. 67 It follows that if teachers appointed to statutory positions in the Teaching Service by the Director-General under s 44 of the Teaching Service Act were merely statutory office holders and not also 'employed', in the ordinary sense, that is connoting a contractual relationship of the kind discussed by Brennan J in Suttling, they would not fall within the definition of 'employee' in s 5 of the Industrial Relations Act, unless they were 'taken to be an employee by subsection (3)'. There reference is made to those deemed to be employees for the purposes of the Industrial Relations Act by inclusion in Schedule 1 to the Act. There is no reference made in Schedule 1 to teachers appointed to the Teaching Service under the Teaching Service Act. The absence of such a reference suggests a view that it is unnecessary to make such a provision; given that such teachers are employees in the ordinary sense. As I have already observed, the Teaching Service Act is elsewhere referred to in the Industrial Relations Act. Had it been thought necessary to deem them to be employees for the purposes of the Industrial Relations Act, no doubt, that step would have been taken. 68 Consenting to the making of an award regulating the employment of teachers, suggests therefore that the Director-General has accepted that the scheme of the Teaching Service Act contemplates that teachers are employed pursuant to a contract of employment, made in accordance with the statutory scheme. It is that employment and the contract under which it is made, to which an award made by the Commission attaches. That view of the Teaching Service Act is properly available, having in mind that it, too, uses the terms 'employee' and 'employed' in their ordinary sense. 69 In my view, the Teaching Service Act expressly contemplates that teachers appointed to positions in the Teaching Service by the Director-General, who is deemed to be their employer, for the purpose of 'any proceedings before a competent tribunal having power to deal with industrial matters' (s 12), will 'have the appropriate qualifications to be employed' (s 47). When appointed, such persons are 'officers', meaning persons 'employed in the Teaching Service other than as a temporary employee'(s 3). The Teaching Service consists 'of the persons who are for the time being employed under this Division' (s 44(1)); they are then 'taken to be employed by the Government of New South Wales in the service of the Crown' (s 44(2)) and finally:
44 (3) This Division does not affect any other method (statutory or otherwise) by which a person holds a position, or is otherwise employed, in the Teaching Service. 70 That view of the Teaching Service Act also explains the evidence of Ms Shearer, that Departmental teachers are employees. 71 Finally, that conclusion accords I note, with the view urged in The Law of Employment, Macken, O'Grady, Sappideen and Warburton, Fifth Edition at p 40: It is submitted that the correct position in Australia in the public sector where there is almost invariably a detailed statute and a large degree of control, is that persons described or appointed as officers are, in almost all cases, employees under a contract although they may at times exercise independent functions invested in the them in respect of some of their duties. The extent to which the parties can agree on terms and conditions is, of course, circumscribed by the terms of the relevant statute and sub-legislation. And one party, the employer, by valid regulations, may be able to vary unilaterally some at least of the terms of the contract. Nevertheless there will be other terms, not circumscribed or expressly agreed, which will be implied by the common law. For example, there is an obligation to obey lawful orders. If not codified in regulations, this is imported from the common law obligation of an employee. In the private sector an officer strictly so called will also be relatively rare.
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:
Whether the changes made to the Procedures prior to 2008 would have been a breach of contract, if made without consent, depends on whether the existing contract allowed such changes to be made. Thus, it may have been an implicit part of the contract that minor variations to the Procedures that retained the principle of priority being given to service transfers, were permissible under the existing contract. For example, it would have been contemplated by the parties that the precise allocation of points to a particular school may change over time in accordance with demographic or other relevant changes affecting the school system.
91 By way of contrast, the Director-General argued that the very fact of the way in which the transfer system developed over time, by agreements with the Federation, militated against the idea that the Director-General ever had an intention to give contractual force to the Procedures whereby the agreements which it reached with the Federation were implemented. The various agreements reflected changes agreed between the Federation and the Director-General in relation to priorities which changed over time, such as the need to increase the number of new graduates being recruited to the Teaching Service, or the need to give priority to the recruitment of staff of Aboriginal or Torres Straight Islander backgrounds. All of these impacted on teachers' rights in relation to service transfer. 92 The Procedures certainly did not have as a term, the concept that 'minor variations' could be made without consent. That was understandable, given that the Procedures reflected an agreement made with the Federation. That agreement did not contain such a term. Nor was there any evidence from which it could have been concluded that the Director-General and the teachers had agreed that the precise allocation of school points might change over time. Those points were fixed as the result of steps taken by the Department from time to time and in 2000, as the result of another agreement with the Federation. 93 The Federation also argued that it did not matter that the express terms of the Procedures had changed by consent in the past. Again, the difficulty, with the argument, so advanced, was that the changes in the Procedures up until 2008, reflected changes in the s 14 agreements earlier reached by the Federation and the Director-General and that the teachers were bound by those agreements, by force of statute. 94 The real difficulty, it seems to me, with the Federation's case was that upon employment the three teachers were each bound by the agreement which had already then been made by the Federation with the Director-General and subsequently, by every agreement which replaced it. When new agreements were made, they were bound by them, no matter what was said in the Procedures by which those agreements were implemented, when they were published. That was not the case in either Ajax Cooke or GEC Plessey. It is difficult to see how it could be accepted that the teachers continuing on in employment, could give rise to the claimed consideration in relation to the Procedures documents, given that the teachers were bound to abide by the agreements which applied to their employment by force of the applicable statute in any event. All that the Procedures did was to implement those agreements. 95 There was no issue between the parties that the agreements made as to the Department's transfer system were agreements in relation to an industrial matter, as defined. Clearly, the agreements concerned teacher's 'rights, duties and obligations' in relation to transfer between Departmental schools. On any view, they were industrial matters about which the Director-General and the Federation were entitled to make s 14 agreements. Those agreements were enforceable as industrial instruments under the Industrial Relations Act. 96 As I have said, it is unquestionable on the evidence that the teachers each made decisions in their careers, having regard to the transfer system operated by the Department from time to time under its agreements with the Federation. Their disagreement with the changes made by the Department in 2008, may be entirely understandable. Given the statutory force of the prior agreements, however, in reality they had no alternative but to make decisions which had regard to what those agreements provided for. 97 It follows that the communication of each agreement and the Procedures introduced to give effect to them, cannot evidence an 'offer', in a contractual sense. No doubt the three teachers become aware of the various agreements after they were made, as well as the Procedures which followed. There was no evidence as to how any changes agreed from time to time by the Department and the Federation, impacted on the teachers' personal situation. Nor was there any evidence from which it could be concluded that the teachers for their part, considered that they had the right to refuse to accept new Procedures, as they emerged, because of pre-existing contractual rights. Their evidence was simply that they were generally aware of the system and the points attaching to service at particular schools, having being given copies of the documents or access to the through the website. Nor was there any evidence of 'acceptance' by the teachers of changes introduced over time, other than continuing employment. In this statutory scheme, I cannot see how that is sufficient. 98 There was no dispute as to any aspect of the teachers' evidence as to those matters, even though what was said, precisely, on any particular occasion and by whom, was not in evidence. Each teacher gave a general description of what they had been told, or learned about the existence of the system and how they were given access to the Procedures documents. There can be no doubt on that evidence that they each relied on the advice received about the system in operation and thus acted upon that information, in making their career decisions. 99 That this could be a sufficient basis from which the conclusions urged by the Federation could flow, is difficult to see, especially in the case of Mr de Wall, given that on his evidence, he was not even aware of the Procedures when his contract was made. Even if it were claimed that the Procedures took contractual force, once Mr de Wall became aware of them, the statutory difficulty remains. 100 At the time of Mr Murphy and Ms Wyper's permanent appointment, they were already aware of the existence of the Department's transfer system, having learned of its existence even before they accepted any employment with the Department. They certainly took account of what they knew of the transfer system, when seeking employment with the Department. When Mr Murphy and Ms Wyper were later permanently appointed, they each already had access to the Procedures, which the Department routinely provided to its staff and which it eventually published on its website. 101 On the evidence of all three teachers, during their employment they consulted the Procedures document, thereby becoming aware of the points which they would accumulate, by service in the schools to which they were offered appointment. In the case of Mr Murphy and Ms Wyper, this was a part of their decision-making process in seeking and taking the permanent appointments they were offered. It does not necessarily follow from this evidence, however, that the Procedures were incorporated into these two teachers' employment contracts, given that they were each always bound by the s 14 agreement in existence when first employed and by every agreement which later replaced it, until the 2005 agreement expired in April 2008.
102 In his case, the Director-General also relied on the approach of the High Court in Byrne v Australian Airlines Ltd, to resist the Federation's case. There the High Court had to consider a claim that certain provisions of an award had become implied terms of a contract of employment. There Brennan CJ, Dawson and Toohey JJ observed at p 421 as to how it was 'unnecessary that the contract of employment should provide for those matters already covered by the award', given the statutory nature of an award. In a similar way, in this case, it was simply unnecessary for the Director-General to contract with the teachers, in respect of matters by which they were already bound by the 2005 s 14 agreement made with the Federation and the agreements which preceded it. They, too, were enforceable as an industrial instrument. 103 The Federation argued, nevertheless, that account should be taken of the fact that the teachers had input into the Procedures, given that it was the Federation which negotiated the terms of the agreements which bound them, with the Director-General. That, however, only underscores the reality that there was no necessity for the contractual terms which the Federation here asserts, in the teachers' individual employment contracts, given the statutory force given to such agreements. While reliance was placed on the approach of Mansfield J in Riverwood International Australia Pty Ltd v McCormick (2000) 177 ALR 193 at 222, another case involving a redundancy agreement in the private sector, the difficulty, again, is that this case also was not concerned with an agreement made in accordance with a statutory scheme like that here under consideration. Nor did that redundancy agreement have statutory force. 104 It was also concluded in Byrne at p 422, that the term claimed could not be implied into an employment contract, because the tests in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283, could not be established - there was no necessity to imply such a term, given the award obligation. 105 In this case, similar considerations militate against the claimed contractual entitlement. The 2005 agreement between the Director-General and the Federation expressly provided in relation to service transfers:
This agreement is made between the Director-General of the NSW Department of Education and Training and the NSW Teachers Federation pursuant to Section 14 of the Teaching Service Act, 1980.
This agreement is to cover the filling of vacant classroom teacher, executive staff and principal positions from Term 2, 2005 until the commencement of Term 2, 2008.
In filling substantive classroom teacher vacancies, the School staffing Unit will provide the highest priority for the placement of priority transfers. The importance of service transfers and recruitment of quality teachers in achieving an equitable distribution of teachers to ensure that students have the opportunity for quality education wherever they live is recognised.
If a vacancy is not filled through priority transfer, service transfer or the Permanent Employment Program on the basis of the indicative allocation, it will be filled through a mix of classroom teachers resuming duty from leave, the Graduate Recruitment Program on the basis of the indicative allocation, and employment.
A list of special fitness schools is at Attachment 1. The advertisement for a position in these schools will be prepared by the selection panel. The selection panel will prepare a description for the school and position and the selection criteria written in words similar to the staffing codes for inclusion in the advertisement.
106 The three teachers were bound by that agreement, which became an industrial instrument under the Industrial Relations Act, enforceable under the provisions of that legislation. It follows that there was simply no necessity for the Procedures, whereby this agreement was implemented, which made similar provisions so far as service transfers were concerned, to be given contractual force. 107 Under the Teaching Service Act, once the 2005 s 14 agreement came to an end, the Director-General was empowered to alter the transfer system, unrestrained by what had earlier been agreed with the Federation. While teachers were then no longer bound by that agreement, nor was the Director-General or the Federation. While they were free to make further s 14 agreements, they were also free to seek award regulation of the transfer system in accordance with the provisions of the Industrial Relations Act, if they wished. In the absence of such an award or agreement, the Director-General was entitled to determine what those conditions would be, in accordance with ss 6 and 13 of the Teaching Service Act. 108 True it is that the Director-General and the teachers are now also free to agree on contractual terms in relation to transfer, no longer being bound by a s14 agreement, so long as any agreement made conforms to the statutory scheme. I am unable to conclude, however, that such an agreement in the form of the 2005 Procedures already exists. It follows, under this statutory scheme, that the Director-General had the power to introduce changes to the transfer system as he did in 2008, after the expiry of the 2005 agreement. Section 13 of the Teaching Service Act 109 Finally the provisions of s 13 of the Teaching Service Act, must be considered. That provision also make the Federation's claim an entirely doubtful one, although it is not necessary to decide the matter on this basis. 110 It is necessary to observe that this aspect of the statutory scheme did not receive much attention in the evidence which the parties led. Initially, in submissions, the Federation accepted that the Procedures were determinations made in accordance with s 13. That was the basis upon which the Director-General's submissions were advanced. In reply, the Federation resiled from that approach. This led to a belated application by the Director-General to lead further evidence which was opposed. I have concluded that the leave sought to lead further evidence should not be granted, given the circumstances in which, and the time at which. the application was made. I was in a position already to give judgment and the evidence sought to be led added but little to the conclusions which I had already reached, on the cases which the parties had earlier argued. 111 Given the way in which the parties approached this aspect of the matter lying between them, there was a question as to whether the Procedures issued from time to time, fell within the provisions of s 13 of the Act. The transfer system certainly concerns teachers' conditions of employment, which the Director-General is empowered to deal with under s 13(1):
(1) Except in so far as provision is otherwise made by law, the conditions of employment, including salaries, wages or other remuneration, of members of the Teaching Service are to be determined from time to time by the Director-General. 112 Such determinations are referred to in Regulation 4, as being required to be communicated to teachers. On the evidence that occurred, indeed it is that communication upon which the Federation relied, in order to argue that the Procedures documents became implied terms of each teacher's contract. Nevertheless, the Federation argued that the Procedures were not 'determinations' and as contractual terms, did not fall within the definition of 'statutory conditions of service', in the Regulations. 113 None of the Procedures in evidence were specifically entitled to be a 'determination'. On Ms Shearer's evidence they were prepared and distributed to support the agreements made between the Director-General and the Federation and 'were in line with them'. The word 'determination' is not used in s 13(1), rather the section is concerned with conditions of employment 'determined from time to time' by the Director-General. Nevertheless, the Federation's argument rested on the absence of the word 'determination' in the Procedures documents. In its ordinary sense, a determination is a decision about a particular subject. In the Macquarie Dictionary, for instance, the word 'determination' is defined as:
noun 1. the act of coming to a decision; the fixing or settling of a purpose. 2. ascertainment, as after observation or investigation. 3. a result ascertained; a solution. 4. the settlement of a dispute, etc., by authoritative decision. 5. the decision arrived at or pronounced. 6. the quality of being determined or resolute; firmness of purpose. 7. a fixed purpose or intention. 8. the fixing or settling of amount, limit, character, etc. 9. fixed direction or tendency towards some object or end. 10. Chiefly Law conclusion or termination.
114 On the evidence, until the 2008 Procedures were introduced, they each reflected the terms of what was agreed between the Director-General and the Federation in the s 14 agreements. It seems to me that if the Procedures reflected the decisions of the Director-General as to matters of implementation of the agreements reached with the Federation from time to time, which were issued to advise teachers of their conditions of employment in that respect, they may have become conditions of employment in relation to transfer, determined by the Director-General, as s 13(1) contemplates. 115 That seems to me to have been an unnecessary step, given the binding force of the s 14 agreements, but still perhaps one available to have been taken by the Director-General under the statutory scheme. There was no evidence as to what the Director-General intended, whenever the Procedures documents were issued, other than that given by Ms Shearer, about which she was not cross examined. That evidence lends force to the conclusion that the Procedures documents were s 13 determinations. If that be the case, that the Procedures documents could have been given contractual force by being published as the Regulation required, cannot be accepted, given this statutory scheme. 116 If, to the contrary, the Procedures documents were not s 13 determinations, undoubtedly the document could have been issued by the Director-General in accordance with s 6 of the Teaching Service Act, where the general responsibility of that office is described as 'the general conduct and the efficient, effective and economical management of the functions and activities of the Teaching Service'. Could a document of that kind have been given contractual force? In theory, it could have been. The difficulty that this was what was intended, is not thereby avoided, for all the reasons I have already explained. 117 Until the 2005 agreement expired, it would not have been strictly necessary for the Director-General, to have dealt with what teachers' conditions of employment in relation to service transfer would be, given that the underpinning agreements already bound the teachers, the Federation and the Director-General, by operation of s 14. 118 The Director-General argued however, that the 2008 Procedures did come within s 13, he having thereby determined what the teachers' relevant conditions of employment are to be, following the expiry of the 2005 agreement. 119 Certainly, since the expiry of the 2005 agreement, there has been no underlying agreement with the Federation. It is unarguable that it is the 2008 Procedures document by which teachers have now been advised by the Director-General that the transfer system operates and of their obligations and entitlements in relation to such transfer. There can be no question that it is by this document that the Director-General has advised teachers as to what their conditions of employment in relation to service transfer is to be in future. The document has also been communicated to teachers, as the Regulations contemplate. Once the 2005 agreement expired, under this statutory scheme, the Director-General was unarguably free to exercise the powers granted by s 13. He appears to have done so. 120 It is unnecessary to decide the case on this basis, given the conclusion which I have otherwise reached, but it must be observed that this aspect of the statutory scheme also lends force to the conclusion that the claimed contractual rights in relation to the 2005 Procedures, do not exist. Custom and Practice 121 In the alternative, the Federation argued that giving service transfers priority over employment by advertisement, was also an implied term of the teachers' contracts, by reason of custom and practice over an extended period. This was submitted to have the necessary notoriety, making it reasonable to assume that such a term was implied. 122 On the evidence, the transfer system has operated since before 1987, initially by way of Regulation and between 1993 and 2005, reflecting agreements reached with the Federation. Over the years, the Department advised its teachers and prospective staff, including the three teachers, about the transfer system operating from time to time. Undoubtedly, teachers, including the three here in question, made decisions having regard to the existence of the system and how it operated over time. Once the Director-General and the Federation made agreements which teachers were bound by, given the provisions of s 14 of the Teaching Service Act, that was inevitable. Each of these three teachers were first permanently employed at a time when such agreements were in existence. 123 In Byrne, the High Court also dealt with an argument based on custom and practice, which also failed. The majority there rejected the argument put, because it relied upon an award provision, which was given force by a statute (at 423-4). At 441, the claim was rejected by McHugh and Gummow JJ, because the claim was not established on the evidence. 124 Here, the evidence certainly showed that the Department went to considerable lengths to make its teachers aware of the transfer system and how it operated. The three teachers were aware of it and made decisions which had regard to what the Department had advised its staff, through what it had published to them. The evidence also showed that the system altered significantly over the years, as the result of agreements which the Federation and the Director-General reached from time to time. 125 In that context, to come to the conclusion that what was provided in the 2005 Procedures, in relation to service transfer priority over advertisements, had the necessary notoriety, so that both parties would have unhesitatingly agreed that it was an express term of their contract, if asked, is in my view not available on the evidence. That would require the statutory scheme and the force which it gave to s 14 agreements to be overlooked. It would also overlook that the particular priority given to service transfers over advertised positions in the 2005 agreement, was not of particularly long standing - the system did not so operate in 2002. 126 The 2002 Procedures provided:
Classroom teacher positions not filled by transfer, special fitness appointment, resumption of duty, recruitment or employment will be advertised and filled by merit. 127 By way of comparison, the 2005 Procedures provided:
Classroom teacher positions not filled through priority transfer, service transfer, the Permanent Employment Program, special fitness appointment or through a mix of resumption of duty from leave, the Graduate Recruitment Program, scholarship holders, teachers completing targeted training programs, or from the employment list, will be externally advertised and filled by merit.
128 I am satisfied, as the majority in Byrne concluded, here there was also no basis upon which such a conclusion as to custom and practice could rest. The Department's Procedures were displaced by operation of statute, immediately upon the Federation and the Director-General making the first s 14 agreement in 1993. That system was displaced by each subsequent agreement, whenever it was made by force of that statute. On the evidence, the Federation still pursues such a new agreement, even now. Once the 2005 agreement was made, the three teachers were bound by its terms, whatever they were. Given the statutory scheme, there was no necessity for them to accept what the new Procedures conveyed to them. Their agreement was irrelevant. The statutory force of the agreements reached militates against the conclusion that there was any implied term based on custom, in relation to the 2005 Procedures as to service transfer priority over advertisements. 129 In any event, given the evidence of the changes negotiated between the Federation and the Director-General from time to time in the various agreements which they reached, I am unable to conclude that the necessary custom could be established on the evidence, as claimed. The terms of the declarations 130 There is a final difficulty which needs to be touched on, given the terms of the relief sought. 131 Given Mr Irving and Ms Shearer's evidence and the terms of the 2005 agreement and how it operated in relation to service transfers, it must be observed that the declaratory relief sought does not entirely reflect the transfer system described in the 2005 Procedures. 132 The declarations sought dealt with priority of service transfers over the employment list and external advertisements, but make no reference to the other types of transfer which also have such priority under the 2005 agreement, such as the permanent employment programme or the graduate recruitment programme, for example. On the evidence some of these programmes appear to have operated in the past to the benefit of the three teachers. Thus, while it was the teachers' evidence that certain service gave them points which entitled them to service transfers, the system in fact gave similar priority to other types of transfer, over external advertising. 133 In her evidence, Ms Shearer also referred to the impact which other agreements reached with the Federation had on service transfers. This evidence was unchallenged, but seemingly no account has been taken of it, in the declaratory relief sought. It is unnecessary to further explore this aspect of the evidence, but it demonstrates the difficulty of making declarations in the terms sought, even if the Federation had otherwise made out its case. Orders
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Ajax Cooke Pty Ltd t/as Ajax Spurway Fasteners
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(1977) 180 CLR 266
(1995) 185 CLR 410
(1987) 162 CLR 427
(2007) 163 FCR 62
(2000) 177 ALR 193
(2002) 60 NSWLR 371
(1987) 17 IR 286
(1921) 30 CLR 132
(1923) 33 CLR 229
(1920) 27 CLR 149
(1933) 50 CLR 520
(1947) 74 CLR 245
(1906) 4 CLR 422