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.