Caltex Petroleum Pty Limited v Harmer

LEGISLATION CITED: Industrial Relations Act 1996 s 89 s 130 s 136 s 137 Public Sector Employment and Management Act 2002 s 4F s 38

Caltex Petroleum Pty Limited v Harmer (1999) 92 IR 264 Public Service Association and Professional Officers Association Amalgamated Union of New South Wales and Director of Public Employment by his agent the Director General of the Department of Justice and Attorney General [2010] NSWIRComm 36 CASES CITED: PSA and Professional Officers Association Amalgamated Union of NSW v Director of Public Employment by his agent the Director General of the Department of Justice and Attorney General (No 2) [2010] NSWIRComm 137 Sydney Water Corp v Australian Services Union (NSW and ACT Branch) [2005] NSWIRComm 305; (2005) 146 IR 388 TAB Agents Association v TAB Pty Limited (No 2) [2004] NSWIRComm 155; (2004) 136 IR 305

Mr J V Murphy of counsel (Appellant) Crown Solicitor's Office LEGAL REPRESENTATIVES: Mr A A Hatcher SC (Respondent) W G McNally Jones Staff

CORAM: BOLAND J, President WALTON J, Vice-President GRAYSON DP

DIRECTOR OF PUBLIC EMPLOYMENT BY HIS AGENT THE DIRECTOR GENERAL OF THE DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL (CORRECTIVE SERVICES NSW) AND PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS' ASSOCIATION AMALGAMATED UNION OF NEW SOUTH WALES

Application by Director of Public Employment by his agent the Director General of the Department of Justice and Attorney General (Corrective Services NSW) for leave to appeal and appeal against a decision of Justice Marks given on 7 October 2010 in PSA and Professional Officers Association Amalgamated Union of NSW v Director of Public Employment by his agent the Director General of the Department of Justice and Attorney General (No 2) [2010] NSWIRComm 137

1 This is an application by the Director of Public Employment by his agent the Director General of the Department of Justice and Attorney General (Corrective Services NSW) for leave to appeal and, if leave is granted, appeal from a decision of Marks J delivered on 7 October 2010 in PSA and Professional Officers Association Amalgamated Union of NSW v Director of Public Employment by his agent the Director General of the Department of Justice and Attorney General (No 2) [2010] NSWIRComm 137. 2 The application received an early listing because of the industrial character of the proceedings and because the impugned decision (and the appeal) was said to give rise to an issue as to the validity of a delegation under s 4F of the Public Sector Employment and Management Act 2002 ('the Act'). 3 The instrument of delegation in question was issued to Mr Chris Evans by the Director General, Department of Justice and Attorney General ('the Director General') on 25 May 2010. Mr Evans was purportedly delegated to undertake the Director General's functions under Pt 2.7 of the Act in relation to allegations of misconduct engaged in by four officers employed in Corrective Services NSW, a division of the Department of Justice and Attorney General. 4 The background to the matter is set out in the decision of Marks J at [1]-[4]. The origin of the proceedings before the Commission was a dispute notification pursuant to s 130 of the Industrial Relations Act 1996 in September 2009 in which the Public Service Association and Professional Officers Association Amalgamated Union of New South Wales ('the PSA'), the union representing the four (originally five) officers accused of misconduct, expressed concern about investigations being conducted based on allegations of infringement of privacy, defects in the investigation process and an apprehension of bias. Concurrently with the dispute notification, the Commission had before it applications brought on behalf of some of the correctional officers, the subject of the investigations, brought under s 89 of the Industrial Relations Act seeking relief based on claimed threats of dismissal with particular reference to s 89(7) of that Act. 5 As Marks J explained at [2]-[3] of his decision, attempts had been made to investigate the alleged misconduct using first Deputy Commissioner Gerry Schipp and later, Mr Ken Moroney. The respondent did not proceed with Mr Schipp and the appointment of Mr Moroney was found to be flawed: Public Service Association and Professional Officers Association Amalgamated Union of New South Wales and Director of Public Employment by his agent the Director General of the Department of Justice and Attorney General [2010] NSWIRComm 36 ('PSA (No 1)'). 6 In relation to Mr Evans' purported appointment, the PSA had asserted that the delegation by the Director General to Mr Evans was invalid because at the date of the delegation Mr Evans was not a 'member of staff', as required by s 4F of the Act and, secondly, that the amendments made were beyond power. The PSA sought various orders in the alternative seeking to restrain the Director of Public Employment and the Department of Justice and Attorney General from dismissing or taking other disciplinary action against the four officers. 7 Mr Evans had been employed on or about 7 May 2010 on a casual basis under s 38 of the Act 'to carry out work on a short term basis'. Mr Evans had no fixed hours of work. Evidence in the nature of time and wage records indicated that Mr Evans worked for four hours on 21 May 2010 but then performed no work until 27, 28 and 31 May and 1 June. He then worked on 3 and 4 June. The PSA submitted before Marks J that as Mr Evans was appointed as a casual employee he was, accordingly, only a member of staff on those days and during those hours when he performed work. He did not perform any work on 25 May 2010, which was the date of the purported delegation. Accordingly, the PSA had submitted, Mr Evans was not a member of staff that day and it followed his appointment was invalid. 8 Marks J accepted that the PSA's submissions warranted a conclusion that there was a serious questioned to be tried. His Honour said at [55]-[56]: [55] The making of any such order is discretionary and the Commission needs to be empowered to make orders of that kind. I referred in my earlier decision to the statutory basis upon which such orders might be made and the basis upon which the discretion to make such orders should be exercised. The discussion commences at [65] of my earlier decision. I will not repeat it, but will rely upon what is therein contained as setting out the approach that I adopt for the purpose of these proceedings.

[56] I am satisfied that there is a prima facie case to sustain the position of the PSA that the delegation was invalid, a probability that, if the matter were to be fully litigated, the PSA would be entitled to relief and that furthermore the balance of convenience favours the granting of an order of the kind sought. 9 The 'earlier decision' his Honour referred to was PSA (No 1). It is apparent from that decision that in respect of the decision under appeal, Marks J was relying on a combination of s 136(1)(c) and s 137(1)(c) of the Industrial Relations Act. This follows from his Honour's reference to Sydney Water Corp v Australian Services Union (NSW and ACT Branch) [2005] NSWIRComm 305; (2005) 146 IR 388 at [71]. 10 Marks J made the following orders: 1) The Director of Public Employment and the Department of Justice and Attorney General are restrained from dismissing or taking other disciplinary action against Anita Malesevic, Owen Garing, Matthew Moore and David Walker based on or as a result of any determination, decision, finding or act of Mr Chris Evans made or carried out pursuant to the purported delegation made to him by Mr Laurie Glanfield on 25 May 2010.

2. Liberty to apply at short notice. 11 The appellant contended the orders made by Marks J were final in respect of his Honour's finding that Mr Evans was not a member of staff on 25 May 2010 and that, therefore, the delegation was invalid. We disagree. It is most apparent from what his Honour said in his decision, particularly at [33] and [55]-[56], that the decision and orders did not concern any final determination of whether or not a valid delegation occurred, but rather whether, in the context of proceedings seeking to restrain the Director General from giving effect to a threat to dismiss, there was a serious issue to be tried regarding the delegation issue (and related questions concerning the balance of convenience).

12 In dealing with the delegation issue his Honour 'took the evidence and made appropriate assumptions about it at its highest in favour of the respondent': at [33]. Although the appellant submitted there was no further evidence to be adduced in relation to Mr Evans' appointment, this was not an agreed position. Moreover, the PSA submitted that as the evidence at first instance was taken at its highest in favour of the Director General, it would be prejudiced if, on appeal, the Full Bench were to accept the decision of Marks J was a final decision and proceeded to determine the question of the validity of the delegation. 13 When seen in this light, we do not consider there is any proper basis to grant leave to appeal save in one respect, as it is clear that Marks J exercised his discretion to grant only interim relief. There is nothing in his Honour's decision that would warrant a departure from the principle that appeals from interlocutory decisions should be deprecated: see Caltex Petroleum Pty Limited v Harmer (1999) 92 IR 264 at 265; TAB Agents Association v TAB Pty Limited (No 2) [2004] NSWIRComm 155; (2004) 136 IR 305 at [8]. 14 Before moving to the exception, we would introduce a note of caution, which is that s 89(7) and ss 136 and 137 do not constitute appropriate vehicles to test the validity of a statutory delegation of power. However, the appellant did not raise this issue and we take it no further. 15 The exception to which we referred is the form of orders by his Honour. In our opinion, the orders have the appearance and effect of restraining the appellant for an indefinite period. That is inappropriate given that it is inconsistent with a decision that was intended to provide only interim relief and not final relief. We propose to grant leave to correct that error because the orders lie outside the scope of the proceedings litigated at first instance. It is sufficient to correct the orders by specifying that they operate 'until further order of the Commission'. 16 There is one further matter upon which we should comment. The proceedings regarding the allegations of misconduct against the four officers and the investigation of those allegations have extended over a prolonged period. They need to be expedited in order that they may be dealt with to finality. We propose to direct Marks J to list Matter No IRC 1345 of 2009 urgently for the purpose of making directions to enable that matter and any other application that might be made in the light of this decision to be heard and determined at the earliest possible opportunity available to his Honour. Orders and directions

17 The Full Bench makes the following orders: (1) Leave to appeal is refused save as to the extent provided by this decision. (2) The appeal is dismissed to the extent provided in this decision. (3) The appeal is upheld to the extent provided in this decision. (4) The orders at first instance are varied by inserting at the beginning of order (1) the words: 'Until further order of the Commission'. 18 The Full Bench directs Marks J to list Matter No IRC 1345 of 2009 urgently for the purpose of making directions to enable the matter and any other application that might be made to be heard and determined at the earliest possible opportunity available to his Honour. ____________________________________

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