Alexandra Boyce v Industrial Relations Secretary on behalf of the Australian Museum Trust

Industrial Relations Commission (NSW)|2018-12-18

J Wydell of Counsel (Respondent) File Number(s): 2018/00220610

Judgment

This decision deals with a jurisdictional objection that has been raised by the respondent to unfair dismissal proceedings commenced by a former employee, Alexandra Boyce.
The nub of the respondent's jurisdictional objection is that there was no "dismissal" of Ms Boyce. Rather, the respondent contends that it had entered into a fixed term employment agreement with her, under which it was agreed that the employment would come to an end on 30 June 2018. The respondent submits that when the employment relationship ended - it says on that day - it did so through the effluxion of time.

The proper respondent

During the hearing I observed that the proceedings had been brought against the Museum, while the proper respondent to the proceedings is the Industrial Relations Secretary, pursuant to s 50 of the Government Sector Employment Act 2013 (NSW) ("GSE Act"). The parties expressed no objection to me making a direction to correct the name of the respondent and I will do so.

Background

The following factual background is uncontested.
Before joining the Museum Ms Boyce had, since 6 March 2002, worked with the Department of Primary Industries and then the Sydney Harbour Foreshore Authority. Ms Boyce was offered employment with the Museum after successfully taking part in a merit-based selection process.
The Museum's first offer of employment to Ms Boyce was contained in a letter dated 31 October 2012. It was stated to be an "offer…of temporary employment to undertake the position of Corporate Partnerships Manager…in accordance with Section 27 of the Public Sector Employment and Management Act 2002". The reason for employment was stated to be "New position". The offer included the following terms: "Your period of temporary employment will commence on and from 12 November 2012 and conclude on 11 November 2014 unless your services are dispensed with under Section 30 of the Public Sector Employment and Management Act 2002."
Ms Boyce signed an acceptance of that offer on 1 November 2012 ("First Contract").
Consistent with the First Contract, Ms Boyce commenced working with the Museum on 12 November 2012.
By letter dated 30 October 2014 the Museum purported to offer Ms Boyce a further period of "temporary employment" as "Head Corporate Partnerships" from 12 November 2014 to 23 February 2015. The offer was said to be "in accordance with the Government Sector Employment Act 2013". The reason for employment was stated to be "Temporary task". The letter did not provide any description of, or information relating to, that task. The offer included the following terms: "It is important to note that this offer of temporary employment does not constitute ongoing employment, and your employment will cease effective from the above mentioned end date unless otherwise notified. Your temporary employment may also be terminated at an earlier date at the discretion of the agency head, including for example where:  work is no longer available  funds are no longer available  performance of duties is unsatisfactory"
Ms Boyce signed an acceptance of the offer on 10 November 2014 ("Second Contract").
By letter dated 9 January 2015 the Museum purported to offer Ms Boyce a further period of "temporary employment", from 24 February 2015 to 30 June 2015. Other than in respect of the proposed dates of employment, the offer was relevantly in the same terms as the Second Contract.
Ms Boyce signed an acceptance of the offer on 22 January 2015 ("Third Contract").
By letter dated 22 June 2015 the Museum purported to offer Ms Boyce a further period of "temporary employment", from 1 July 2015 to 31 December 2015. Other than in respect of the proposed dates of employment, the offer was relevantly in the same terms as the Third Contract.
Ms Boyce signed an acceptance of the offer on 22 June 2015 ("Fourth Contract").
By letter dated 1 January 2016 the Museum purported to offer Ms Boyce a further period of "temporary employment", from 1 January 2016 to 31 December 2017. The reason for employment was stated to be "External funding". The funding was described as "Westpac funds (80%) & 50036362 Recurrent (20%)". Ms Boyce's position was described as "Manager, Partnerships". Otherwise, the offer was relevantly in the same terms as the Fourth Contract.
Notwithstanding that the term of the Fourth Contract had ostensibly expired on 31 December 2015, Ms Boyce worked from 5 to 8 January 2016, apart from half a day on 6 January 2016 when she was provided with recreation leave. Ms Boyce took a combination of recreation and flexible leave for the period 11 to 26 January 2016. She returned to work on 27 January 2016.
On 27 January 2016 Ms Boyce signed an acceptance of the offer dated 1 January 2016 ("Fifth Contract").
On 2 November 2017 Ms Chien sent an email to Ms Boyce in these terms: "Hi Alex Your role needs to be compliant under [the] GSE Act by 12 November 2018. We have two options 1. Transfer you role to ongoing status 2. Keep your role status as temporary with min 20% funded by sponsorship funding (this would allow your role to be GSE exempt) I will work with Jacinta to transfer your role to ongoing basis…"
By letter dated 2 November 2017 the Museum purported to offer Ms Boyce a further period of "temporary employment", from 1 January 2018 to 30 June 2018. No reason for employment was stated. The funding was described as "40000055 Partnerships". Ms Boyce's position remained described as "Manager, Partnerships". Otherwise, it was relevantly in the same terms as the Fifth Contract.
Ms Boyce signed an acceptance of the offer on 16 November 2017 ("Sixth Contract").
Significantly in light of the email referred to at [26] above, the Sixth Contract made no reference to external funding. Indeed, at the hearing Ms McKay gave unequivocal evidence that only the Fifth Contract involved external funding for Ms Boyce's role (Tcpt p 51 (19-45) and p 67 (45-48)).
On 28 June 2018 Ms Boyce met with Ms Chien and Jacinta Spurrett, the Museum's Director, Marketing, Communications and Partnerships (then Ms Boyce's direct supervisor). Ms Boyce was handed another contract, once again stated to be for "temporary employment", for the period 1 July 2018 to 30 November 2018. Ms Boyce's proposed position remained as "Manager, Partnerships". In other respects it was relevantly in the same terms as the Sixth Contract.
During the meeting Ms Boyce was informed that her employment would henceforth be subject to financial targets regarding sponsorship income. On the evidence, her employment had never previously been subject to such targets.
At 7.23pm on 28 June 2018 Ms Chien sent an email to Ms Boyce which was in these terms: "Dear Alex, Thanks for your time this afternoon. As you are aware the fixed term contract role you have had ends on 30 June 2018. We would like to outline the terms for the new and different role that we are offering you, which, if you accept it, will commence with effect from 1 July 2018 to 30 November 2018. The standard terms were set out in the Fixed Term Employment Contract that you were provided today. In addition, the offer for a further fixed term employment contract subsequent to 30 November 2018 is contingent upon achievement of the following performance outcomes: The Partnerships team achieving cash income of $1.15 million for the [Museum] by 30 June 2019.  Your individual activities achieving cash income of $550,000 for the [Museum] by 30 June 2019. Please let me know if you are unclear on any aspects of this offer. Please advise me whether you wish to accept this offer before close of business 6 July 2018 at which time the [Museum's] offer of fixed term employment will expire."
On 2 July 2018 Ms Boyce handed to each of Ms Spurrett and Ms Chien a letter dated the same day, addressed to Ms Chien. That letter extended over five pages. Amongst the contentions contained in that letter, Ms Boyce asserted that she regarded her employment as "ongoing" (as opposed to temporary); that she regarded the offer of a "new and different role" as evidencing the redundancy of her previous role; that the offer was "not suitable alternative employment, or alike" and it was rejected; and, that she was "seeking compensation through a redundancy payout for 16 years and 4 months of service as a NSW Government employee".
Also on 2 July 2018 Ms Boyce cut up her Museum-issued credit card. She gave that, together with her Museum-issued mobile telephone (which had been restored to factory settings), to Ms Spurrett. In the company of Ms Spurrett, Ms Boyce went to the Security office where she handed in her access card. She then left the Museum's premises.
At 6.11pm on 2 July 2018 Ms Boyce sent an email to Ms Chien, attaching a copy of the letter referred to at [33] above. The email was in these terms: "Hi Maggie Please find attached an electronic copy of the letter I gave you today, rejecting the contract of employment that was presented to me late last Thursday afternoon. Sincerely Alexandra Boyce"
At 6.13pm on 2 July 2018 Ms Boyce sent a further email to Ms Chien, in the following terms: "Hi Maggie I have been instructed to take leave from work. A Medical Certificate is attached. Sincerely Alexandra Boyce"
On 5 July 2018 Ms Boyce sent a further email to Ms Chien in these terms: "Hi Maggie As you had advised, I was given to end of this week to come into work. However, due to circumstances I have not been able to attend post the half day I did on Monday. Please find attached another medical certificate for my absence today and tomorrow. Sincerely Alex"
Also on 5 July 2018 the Museum paid into Ms Boyce's bank account amounts in respect of salary (7 hours), accrued recreation leave, extended leave and annual leave loading.
On 9 July 2018 Ms Chien wrote to Ms Boyce, in response to Ms Boyce's letter of 2 July 2018. Ms Chien stated, amongst other things, that Ms Boyce had legitimately been employed as a temporary employee, and had not been in ongoing employment; that the situation was not one of redundancy (leaving aside that temporary employees are excluded from the relevant policy); and, that there was no unfairness in the way in which changes to Ms Boyce's role were developed or communicated to her. Ms Chien further stated: "As you have expressed no intention to consider further employment with the Australian Museum I have finalised the remaining matters from your employment and paid to you the normal termination payments, including outstanding leave entitlements."
On 18 July 2018 Ms Boyce filed the Application.

Public sector employment

According to the terms of the First Contract, Ms Boyce was originally employed by the Museum pursuant to s 27 of the Public Sector Employment and Management Act 2002 (NSW) ("PSEM Act"). Sections 7 and 27 of the PSEM Act were in these terms: 7 Categories of employment (1) Staff may be employed in a Department in the following categories: (a) officers - being persons employed in chief or senior executive positions or other staff positions in the Department, (b) temporary employees - being persons employed to carry out work in the Department on a temporary basis, (c) casual employees - being persons employed in the Department on a casual basis. (2) Temporary employees may be employed in following subcategories: (a) Departmental temporary employees - being persons employed under Part 2.4 to carry out work in a Department, (b) special temporary employees - being persons employed under Part 2.5 to carry out work for a political office holder. ... 27 Employment of Departmental temporary employees (1988 Act, s 38 (1)-(2)) (1) The appropriate Department Head may employ a person who has appropriate qualifications to carry out work in the Department for a particular period. (2) Persons employed under this Part are Departmental temporary employees. (3) A person may be employed as a Departmental temporary employee: (a) for the duration of a specified task or project, or (b) to carry out the duties of a position that is temporarily vacant, or (c) to provide additional assistance in a particular work area, or (d) in connection with the secondment or exchange of staff, or (e) to undertake a traineeship or cadetship, or (f) for any other temporary purpose. …
In 2014 the PSEM Act was repealed and replaced by the GSE Act.
Sections 42 and 43 of the GSE Act are in these terms: 42 Application of Division (1) This Division applies to Public Service employees other than Secretaries of Departments, heads of other Public Service agencies and other Public Service senior executives. (2) The employees to whom this Division applies are referred to in this Division as Public Service non-executive employees. 43 Kinds of employment (1) Employment as a Public Service non-executive employee may be any one of the following kinds of employment: (a) ongoing employment, (b) temporary employment, (c) casual employment. (2) Ongoing employment is employment that continues until the employee resigns or his or her employment is terminated. (3) Temporary employment is employment for a temporary purpose. (4) Casual employment is employment to carry out irregular, intermittent, short-term, urgent or other work as and when required. …

Unfair dismissal laws

Sections 83 and 84 of the Industrial Relations Act are, to the extent relevant to these proceedings, in these terms: 83 Application of Part (1) This Part applies to the dismissal of: (a) any public sector employee, or (b) … … (2) This Part does not apply to an employee who is exempted from this Part by the regulations. Any such regulation may only exempt specified classes of employees included in any of the following classes: (a) employees engaged under a contract of employment for a specified period of time or a specific task, … (5) In this Part: dismissal includes: (a) the threat of dismissal, and (b) in the case of a public sector employee - dispensing with the services of the employee, dismissing the employee as a consequence of disciplinary proceedings against, or the commission of an offence by, the employee or annulling the appointment of the employee. … 84 Application for remedy by dismissed employee (1) If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part. …
The Industrial Relations Act does not define "dismissal", other than to the extent of specifying in s 83(5) certain circumstances which the word will be taken to encompass.
In an oft-quoted passage dealing with the statutory predecessor to s 83 of the Industrial Relations Act, in Smith v Director General of Education (1993) 51 IR 204 the Full Bench of the then Industrial Court of New South Wales held (at p 219): "The Industrial Relations Act does not define 'dismissal', but, as we have said, s 245(5)(a) includes in the concept the Crown's dispensing with the services of an employee. It is to the ordinary meaning of 'dismiss' that assistance may be obtained; the Oxford English Dictionary, 2nd ed (1989) defines the word in appropriate respects as follows: '2.a. … To send away (a person); to give permission to go; to bid depart. b. … 3.a. … To send away or remove from office, employment, or position; to discharge, discard, expel. b. ... 4. To deprive or disappoint of or from some advantage.' We apprehend no real issue may be taken with the ordinary meaning of the word 'dismissal' as so applied to s 245, and, indeed, it seems to us that it is in that defined sense of an employee being sent away from employment that unfair dismissal cases in industrial jurisprudence have been concerned. The terms of s 245 of the Industrial Relations Act would suggest no latent limitation in that respect. Therefore, we find no difficulty in accepting the ordinary meaning of 'dismissal' suggested by Brereton J in Ex parte Wurth as being 'the termination of services by the employer without the employee's consent'; we would add that where an employee does not freely consent to the termination, understood in a broad sense, then the circumstances may still amount to a dismissal by the employer as a constructive dismissal: see Willis (at 136, 137) , Ex Parte Wurth (at 59, 60) , Re Michaelis Bayley Trading Co and New South Wales Sales Representatives and Commercial Travellers Guild Re Dismissal [1979] AR (NSW) 392 at 393 and Western Excavating (ECC) Ltd v Sharp [1978] 1 CR 221 at 225, 226."

The respondent's case

The basis of the respondent's objection to the Application is well summarised in the following extracts from its outline of submissions: "6. However, there was no dismissal of the respondent by the applicant within the meaning of section 83(5) of the IR Act; because the contract of employment agreed between the applicant and the respondent expressly and unambiguously states the 'Period of employment' as commencing on 1 January 2018 and ending on 30 June 2018; rather the contract of employment came to an end as agreed by the applicant and the respondent. 7. There was no act by the respondent without the consent of the applicant which brought about termination of the applicant's services. … 43. This matter concerns a temporary contract of employment for a specified period of time (fixed term contract) that came to an end as agreed between the Applicant and the Respondent. 44. Such is the basis of the Respondent's jurisdictional objection as outlined in the Directions Hearing on 4 September 2018. … 57. The respondent submits: (i) Adopting the approach in Grycan, the primary question for consideration by the Commission is whether, on its proper construction, the contract between the parties is a fixed term contract. (ii) The 'Period of Employment' is clearly and unambiguously expressed in the Temporary Contract of Employment 1 January 2018 to 30 June 2018, (iii) The [termination provisions] in the Temporary Contract of Employment 1 January 2018 to 30 June 2018 are not a term of the contract and therefore do not under the Andersen approach nullify the proper construction of the temporary contract of employment 1 January 2018 to 30 June 2018 as other than a contract for a fixed term. (iv) Section 47(2) [of the GSE Act] was not acted upon by the Respondent, (vi) the Temporary Contract of Employment 1 January 2018 to 30 June 2018 came to an end as agreed by the Applicant and the Respondent, (vii) there was no dismissal (within the meaning of s 83(5) of the [Industrial Relations] Act) of the applicant by the respondent, (viii) the respondent's jurisdictional objection should be upheld and the applicant's Application should be dismissed." (Footnotes omitted) I observe parenthetically that there was no paragraph numbered 57(v) in the respondent's outline of submissions.
On 24 July 2018 the Museum filed with the Registry an Employer's Reply to Application for Relief in relation to Unfair Dismissal ("Reply"). In the Reply the Museum further contended that Ms Boyce was excluded from bringing the Application by s 83(5) of the Industrial Relations Act, on the basis that she was engaged under a contract of employment for a specified period of time or a specific task. The respondent did not press that objection in the proceedings before me.

Ms Boyce's case

In her outline of submissions Ms Boyce contended as follows: "Ground 1 - The Applicant was deemed an 'ongoing employee' by statute 13. The Respondent's preferred structure of endless rolling Temporary Contracts is contrary to the GSE Act and Rules. 14. Section 43(3) of the GSE Act defines 'temporary employment' as 'employment for a temporary purpose'. 15. All the evidence attests to the fact the employment was for anything but a temporary purpose. The employment therefore was one of an 'ongoing' nature (s 43(2)). 16. Further, and in the alternative, Rule 10(1) to the GSE Rules relevantly provides as follows: 'The maximum total period for which a Public Service non-executive employee may be employed in temporary employment in the same Public Service agency is 4 years within any continuous period of 5 years.' 17. The Applicant commenced employment on 12 November 2012. It is incontrovertible that under Rule 10, the Respondent could not have employed the Applicant in a temporary capacity beyond 11 November 2016. Yet it did, against the strenuous objections of the Applicant. … Ground 2(a) - The Applicant was an 'ongoing employee' at law: the conduct of the Respondent 30. The fact that the Applicant was a de facto ongoing employee is attested to by the conduct of the Respondent. 31. ln respect of the fifth contract, by its own evidence, the Respondent did not issue this to the Applicant until 27 January 2017 - some 27 days after the expiration of the previous temporary contract. 32. From 1 January 2017 to 27 January 2017, the Applicant continued to present for work and was paid in accordance with her previous (expired) contract of employment. 33. From 1 January 2017, as a matter of law, the employment could no longer be said to be one of a temporary nature. It became 'ongoing' by the conduct of the Respondent in requiring the Applicant to continue to work and be paid for same in the absence of any written temporary contract. … Ground 2(b) -The Applicant was an 'ongoing employee' at law: illegal contracts 42. Further, and in the alternative, given that the purpose of the fifth, six and seventh contracts were to avoid and/or directly contravene the GSE Act and Rules, such contracts are illegal (Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498). … 44. Consequently, the Applicant was employed pursuant to an unwritten contract of employment (with most of the terms likely deriving from the fourth contract). 45. Pursuant to Section 43 of the GSE Act, the employment therefore cannot be categorised as either for a 'temporary purpose' or 'casual' as there is no contractual basis by which to form such a conclusion. 46. Accordingly, therefore, the employment was one of an ongoing basis, and the Respondent's jurisdictional objection must fail."
During the hearing Mr Kutasi made the following submissions: "So if I can just very quickly take you through this, Commissioner. Essentially we believe that our case - we only have to meet one of five arguments. If we meet any one of those five, it's our argument that there has been a termination at the initiative of the employer. I will take you through each of those arguments, Commissioner, very quickly. Our first contention is that the employment always was ongoing from the very start and if you look at s 43 of the Government Sector Employment Act there is actually a definition of temporary employment in the Act. That's subs 3. It says, 'Temporary employment is employment for a temporary purpose.' So again we have to then look at the evidence here and, well, was there a temporary purpose for this arrangement? Just because there's a characterisation of documents describing them as temporary doesn't necessarily make it employment for a temporary purpose. Indeed, as Ms McKay admitted, there was a contract that had not been signed until twenty-seven days after the commencement of a contract period, which tends to indicate the permanency of the arrangement, and she even admitted that she would have fired her had she not signed that contract. So that flows into a couple of other matters as well which I think - I do agree with my friend's submissions in relation to applicable cases, the cases like Anderson and Cooper and D'Lima. I completely agree with them and I think they suit and they fit with our circumstances here, Commissioner. The second point is that, in the alternative or further in the alternative, she became an ongoing employee from 1 January 2016 when she worked after the expiration of the earlier contract. The third point is that she became ongoing from the moment she attained the four years under r 10 [of the Government Sector Employment (General) Rules 2014 (NSW)], and I note the additional comments and we've already talked about. The fourth point is that she became ongoing when she worked on 2 July 2018. And the fifth point, and, as I said, we only need to satisfy one of these in our submission, Commissioner, the fifth point is that the contracts had been repudiated from the moment the Australian Museum presented her with the 80/20 sham external funding contract in January 2016." (Tcpt, p 107 (17) - 108 (4))

Consideration

It will be seen from the factual background set out above that Ms Boyce's period of employment with the Museum was unbroken from 12 November 2012 until its cessation in 2018. She had signed six contracts throughout her employment, each of which on its terms purported to create a temporary employment relationship.
The respondent relied on the express terms of those contracts, and in particular the Sixth Contract, to submit that this matter "concerns a temporary contract of employment for a specified period of time (fixed term contract) that came to an end as agreed between the Applicant and the Respondent".
At the outset, it must be noted that Ms Boyce was employed pursuant to the statutory scheme set up initially under the PSEM Act and, from 2014, under the GSE Act. Concepts derived from the common law of employment cannot derogate from, or distract attention away from, the requirements of the relevant statutory scheme: Corrective Services NSW v Danwer [2013] NSWIRComm 61 at [27]-[29]; Grant Johnson and Department of Industry (On Behalf of the Secretary of Department of Industry) [2017] NSWIRComm 1067 at [12] and [13].
In Director-General of Education and Ors v Suttling (1987) 162 CLR 427 Brennan J (with whom Mason ACJ and Deane J agreed) stated (at 437-438): "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, for example, Gould v Stuart; Carey v The Commonwealth; Lucy v The Commonwealth. However, the contractual nature of the relationship has not been universally accepted: see, for example, Monckton v The Commonwealth; Lucy v. The Commonwealth; Geddes v. Magrath; Morgan v. Geddes; The Commonwealth v Welsh; and cf. Ryder v Foley. And sometimes an espousal of one view rather than the other has been avoided: see, for example, Reilly v The King; Kodeeswaran v Attorney-General of Ceylon. 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. The statute itself controls the terms of service: McVicar v Commissioner for Railways (NSW)." (Footnotes omitted)
It follows from these authorities that the appellation the parties may have attributed to the relationship will not be determinative. The true nature of the employment must be discerned from all of the facts in the context of the statutory scheme that applied to the employment.
The First Contract provided that Ms Boyce was being employed in accordance with s 27 of the PSEM Act. Section 27(3) set out the circumstances in which a temporary employee could be employed. The provision is reproduced at [41] above. I note in particular the reference in s 27(3)(f) to "any other temporary purpose" (my emphasis).
It is not disputed that after the passing of the GSE Act Ms Boyce became and remained a "Public Service non-executive employee" within the meaning of s 42(2) of that Act. Section 43(1) of the GSE Act allows for a Public Service non-executive employee to be employed in one of three kinds of employment: ongoing employment, temporary employment or casual employment.
There is no suggestion that Ms Boyce was ever in casual employment with the Museum. The question is whether she was in temporary employment, as contended by the respondent, or in ongoing employment, as argued by Ms Boyce.
Section 43(3) of the GSE Act defines temporary employment as "employment for a temporary purpose".
The principles of statutory construction which are generally to be applied were helpfully summarised in Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56, noting in particular the observations French CJ and Hayne J at [23] to [26] and Keifel J at [88]. I need not reproduce those passages or outline the relevant principles for the purposes of this judgment.
Applying these principles, what seems clear from the relevant provisions of both the PSEM Act and the GSE Act is that to be properly categorised during her employment as a "temporary employee" (under the PSEM Act) or being in "temporary employment" (under the GSE Act) it was necessary that Ms Boyce be employed for a particular purpose which was temporary in nature.
The meaning to be afforded to "temporary" can be discerned to some extent from the context in which it appears in s 43(1) of the GSE Act. That is, it must be something other than ongoing or casual.
According to the Macquarie Dictionary "temporary", as an adjective, is defined as follows: "1. lasting, existing, serving, or effective for a time only; not permanent: a temporary need." (Emphasis in original)
On the evidence, and perhaps other than in respect of the Fifth Contract, it is difficult to ascertain when Ms Boyce was ever employed by the Museum to meet a purpose that was temporary, in the sense that it was not ongoing or was "for a time only".
None of the First to Sixth Contracts articulated in any way the purpose, temporary or otherwise, for which Ms Boyce was being employed. The First Contract stated the reason for employment as being "New position". The Second, Third and Fourth Contracts described the reason for employment as being "Temporary task", but did not describe that task. The Fifth Contract offered the reason for employment as being "External funding", but did not set out the purpose of the role. The Sixth Contract did not state any reason at all for Ms Boyce's employment.
For completeness I observe that the contract offered to Ms Boyce for the period 1 July 2018 to 30 November 2018, which was not accepted, also made no reference to the purpose for which Ms Boyce was to be employed, temporary or otherwise.
Ms Chien gave evidence that from 12 November 2012 until 31 December 2015 Ms Boyce was covered by a single position description. This is the period during which the First to Fourth Contracts operated. The position description was annexed to Ms Chien's statement filed on 8 October 2018. It contains a heading "Purpose of Position". Nothing under the heading, or indeed elsewhere in the document, makes reference to anything that might be regarded as temporary in nature. Rather, the first point under the heading "Purpose of Position" reads: "Create ongoing relations with prospective and established corporations to enable delivery of Museum programs and initiatives." This is hardly the language of employment for a temporary purpose.
This evidence calls into question the weight to be afforded the use of the term "temporary task" in each of the Second, Third and Fourth Contracts.
In connection with the Fifth Contract, in her statement of 10 October 2018 Ms McKay deposed as follows: "1. In late 2015, the Australian Museum successfully secured a major partnership with Westpac Banking Corporation as part of the bank's 200th Anniversary and the Australian Museum's 190th Anniversary activities (planned for 2017). … 4. The Australian Museum had committed to Westpac to appoint an Account Manager to service the day to day needs of the sponsorship in its early establishment and launch phases. 5. The Australian Museum offered Ms Boyce a two-year temporary employment contract commencing on 1 January 2016 as Manager, Partnerships to specifically manage the relationship with Westpac on a day to day basis (80% of her time); and in the remaining 20% of her time oversee the Partnership's team and manage other commercial partnerships. 6. This contract would not have been offered to Ms. Boyce had the Australian Museum not secured Westpac as a partner. 80% of the funding for Ms. Boyce's salary came directly from the Westpac sponsorship funds and was budgeted for accordingly. To my knowledge, the remaining 20% was funded proportionately from other existing sponsorship arrangements and the general sponsorship budget of the Australian Museum."
During the hearing Ms McKay had the following exchange with Mr Kutasi (Tcpt p 51 (19-45)): "Q. Thank you. So back to this contract at MC7, you'll notice it no longer claims to be funded externally. Do you see that? A. Yes, I do because it wouldn't be funded externally in that way because the Westpac contract came to an end at the end of December-- Q. The Westpac contract came to an end? A. No, no, the Westpac period that we had offered Alex Boyce. The two year contract. Alex was engaged on a two year contract, as you're aware. Q. Yes? A. To specifically spend 80 per cent of her time managing the day-to-day functions of the Westpac relationship. Q. But where is that offer that you were going to give her then for two years? Where's that documented? A. She had a two year contract. Q. No, no, no, you said that you made an offer to Westpac and that agreement came to an end? A. No, no, sorry. When I refer to the Westpac agreement, you've misunderstood what I'm saying. I was referring to the relationship with Alex Boyce, the Westpac day-to-day contract. Q. Well, why did it come to an end after two years? A. Because in terms of the sponsorship arrangement, all of the work and servicing that needed to be done to look after Westpac in the launch period was intense and it was for the first two years."
This evidence suggests, despite the absence of anything to like effect in the Fifth Contract, the purpose for which Ms Boyce's was purportedly engaged under the Fifth Contract, namely to service the contract between the Museum and Westpac.
However, Ms Chien's gave evidence regarding the "role description" that applied to Ms Boyce's employment from 1 January 2016. The role description is attached to the statement of Ms Chien filed on 8 October 2018. (I note for clarity that the "role description" is a different document to the "position description" referred to at [67] above.) Ms Chien deposed that the role description not only applied during the term of the Fifth Contract, but also that of the Sixth Contract. Further, Ms Chien deposed that the same role description would have applied to the proposed further term of employment from 1 July 2018 to 30 November 2018.
The role description makes no reference to the Westpac sponsorship. There is nothing in the document to suggest anything temporary in the purpose for which Ms Boyce was being employed.
It is therefore difficult to conclude from the totality of the evidence that for the duration of the Fifth Contract Ms Boyce was employed for a temporary purpose.
Ms McKay gave evidence that Ms Boyce's role "did change at different times" (Tcpt p 61 (8)). By contrast, Ms Chien gave the following evidence during cross-examination (Tcpt p 31 (20-21)): "Q. Did Ms Boyce's role change at any time during her employment? A. During her employment? From my point of view, no."
I respectfully prefer the evidence of Ms Chien on this point. This is not to call into question Ms McKay's veracity; rather it recognises that in her role Ms Chien is better qualified to answer the question. Ms Chien's evidence is, moreover, consistent with the documentary evidence referred to above.
I also observe that the email from Ms Chien to Ms Boyce of 28 June 2018 (see [32] above) expressly anticipated a continuation of the employment relationship until at least 30 November 2018, and indeed beyond that date subject to Ms Boyce's achievement of the "performance outcomes" detailed in the email. While the email makes reference to "a new and different role", it is difficult to reconcile that description with the evidence referred to above.
Further to these matters, the events described at [24] above are inconsistent with a series of strictly fixed term contracts. Between the expiration of one contract and the execution of the next Ms Boyce was allowed to work and take leave.
During the hearing there was the following exchange between Mr Kutasi and Ms McKay (Tcpt p 60 (32-45)): "Q. So if she was to not have signed the contract on 27 January [2016], what would've happened? A. If she had not signed a return contract at that time, I imagine she would've been called in to see the CFO or the head of HR and asked why she hadn't signed the contract. Q. And what would've happened if she still refused to sign it? A. She would've not been allowed to work at the Australian Museum. Q. So you would've terminated her employment? A. Her contract. Q. Yes? A. We would've had to if she did not sign the contract at that time."
That the Museum would have been required to take steps to terminate the employment relationship had Ms Boyce not signed the contract once again suggests an ongoing relationship, and certainly not one bound by the strict terms of the Fourth Contract.
Similarly, there is some uncertainty on the evidence as to precisely when Ms Boyce's employment came to an end. It is not in dispute that she attended work on 2 July 2018. There is a suggestion that she received payment for that day, although the evidence does not allow me to make a positive finding in that regard.
Ms Chien's email of 28 June 2018 (see [32] above) extended the time within which Ms Boyce could accept the offer of ongoing employment, but did not expressly extend the employment itself.
In her letter to Ms Chien of 2 July 2018 (see [33] above) Ms Boyce stated: "As I understand it, from what you have told me, my last day of employment is to be the date you have informed me that the new contract offer expires - 6 July 2018."
Similarly, in her email to Ms Chien of 5 July 2018 (see [37] above), Ms Boyce seems to suggest that her employment had been extended to 6 July 2018.
There was no immediate response from Ms Chien to either the letter of 2 July 2018 or the email of 5 July 2018. Ms Chien did not respond until 9 July 2018, in the letter referred to at [39] above. That letter makes reference to the employment having ended on 30 June 2018.
I cannot be satisfied on the evidence that the employment did in fact come to an end on 30 June 2018, strictly in accordance with the terms of the Sixth Contract. This once again argues against a finding that the employment was truly of a fixed term as submitted by the Museum.
Finally, I note the email from Ms Chien to Ms Boyce dated 2 November 2017 (see [26] above). Like the email of 28 June 2018, that email infers a continuation of the employment relationship beyond November 2018, through the expressed need to be compliant under the GSE Act "by" then. Of concern, however, is the suggestion that structures might need to be put in place to allow Ms Boyce's role to be "exempt" from the GSE Act. As stated at [29] above, nothing was apparently done to implement the measures which Ms Chien considered would achieve such an "exemption". Leaving that aside, it is noteworthy that the Museum was looking for "exemptions" from the GSE Act given the history of Ms Boyce's employment with the Museum.
Having regard to all of the evidence and submissions, I am not satisfied that Ms Boyce was ever employed "for a temporary purpose", but in particular in connection with the Sixth Contract. It follows that she cannot have been in temporary employment within the meaning of ss 43(1) and 43(3) of the GSE Act.
Whatever labels the parties may have put on their relationship, and whatever understanding they may have had regarding the nature of that relationship, they remained bound by and subject to the terms of the GSE Act. The GSE Act allows for employment in one of three categories. If Ms Boyce was not in casual employment or temporary employment, she must have been employed in ongoing employment.
This is not a case of Ms Boyce being "deemed" as being in ongoing employment, as contended by her. Rather, in circumstances where there is no dispute that an employment relationship exists, that relationship must fall within one of the types of employment in s 43(1) of the GSE Act. Only then, to adopt the language in Suttling, would "the contract…be consistent with any statutory provision which affects the relationship".
Ms Boyce is properly to be regarded as having been in ongoing employment with the Museum. Within the terms of s 43(2) of the GSE Act she could have expected her employment to continue until she resigned or her employment was terminated. On the basis of the language in that section, and having regard to Parliament having affixed the adjective "ongoing" to the employment, it was and is not open to the Museum to plead that Ms Boyce was engaged on a fixed term contract that expired through the effluxion of time.
The parties made considerable submissions and referred me to numerous authorities on the question of whether Ms Boyce should be regarded as having been employed on a fixed term contract, particularly in connection with the Sixth Contract. Those authorities largely involved the consideration as to whether in each particular case the employee was "employed under a contract for a specified period of time" and so therefore excluded from bringing an unfair dismissal claim by s 83(2)(a) of the Industrial Relations Act or its current and former federal equivalents. Those authorities are of little assistance in construing and applying the provisions of the GSE Act.
Having made the findings in [91] above it is not necessary that I traverse the various further contentions advanced by Ms Boyce in response to the Museum's objection.
I emphasise that this judgment is confined to the jurisdictional objection raised by the Museum. I offer no views on the merits of the substantive application, which will need to be determined on the evidence adduced, and submissions made, by the parties at the relevant time. That evidence will necessarily entail a closer examination as to exactly when and in precisely what circumstances (and at whose instigation) the employment relationship came to an end.

Orders

I make the following orders: 1. Direct that the name of the respondent be amended to Industrial Relations Secretary on behalf of the Australian Museum Trust. 2. The jurisdictional objection raised by the respondent is dismissed. 3. The matter is listed for directions at 9.30am on 4 March 2019. Damian Sloan Commissioner

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 February 2019

Public Sector Employment and Management Act 2002(NSW)ss 7, 27

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