Castlemaine Tooheys Ltd v South Australia

Industrial Relations Act 1996 - s 89, s 130, 136, s 137, LEGISLATION CITED: Interpretation of Legislation Act 1984 - s 35 Public Sector Employment and Management Act 2002 - s 3, s 4F, s 6, s 7, s 27, s 42, s 46

Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 Director-General of Education v Suttling [1987] HCA 3; (1987) 162 CLR 427 Downe v Sydney West Area Health Service (No 2) [2008] NSWSC 159 Hill v Director-General of the Department of Education and Training (NSW) [1998] NSWIRComm 622; (1998) 85 IR 201 CASES CITED: Jarratt v Commissioner of Police (NSW) [2005] HCA 50; (2005) 224 CLR 44 R v Ashby [2010] VSC 14 Sydney Water Corporation v Australian Services Union [2005] NSWIRComm 305 Visscher v The Honourable President Justice Guidice [2009] HCA 34 Wells v Newfoundland [1999] 3 SCR 199

HEARING DATES: 23 February 2010 23 March 2010

Mr M Gibian of counsel (Applicant) Solicitors W.G McNally Jones Staff LEGAL REPRESENTATIVES: Mr J Murphy of counsel ( Respondent) Solicitors Crown Solicitor

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.

Notification under s 130 by Public Service Association and Professional Officers Association Amalgamated Union of New South Wales of a dispute with NSW Department of Corrective Services

Applications for relief in relation to Unfair Dismissal by Anita Malesevic, Owen Garing, Matthew Moore and David Walker

1 These dispute proceedings have their genesis in a notification made on 1 September 2009 by the Public Service Association and Professional Officers Association Amalgamated Union of New South Wales ("the PSA") arising out of certain action said to have been taken by the respondent New South Wales Department of Corrective Services. The dispute notification referred to investigations being conducted by the respondent of a number of its members employed by the respondent who had allegedly posted comments on the "Facebook" website about the Commissioner and other senior officers of the respondent. The dispute notification expressed concern about investigations being conducted by the respondent based on allegations of infringement of privacy, defects in the investigation process and an apprehension of bias. Concurrently, with the dispute notification the Commission has before it applications brought on behalf of each of the correctional officers, the subject of the investigations, brought under s 89 of the Industrial Relations Act 1996 seeking relief based on claimed threats of dismissal with particular reference to s 89(7) of that Act. 2 The dispute proceedings were the subject of conciliation, which failed. The arbitration process then commenced. Initially, the arbitration centred around allegations of apprehended bias on the part of the person conducting the investigations. The Commission was not called upon to issue a decision about this matter. The respondent discontinued the earlier process and appointed another person to investigate the conduct of the employees concerned and to determine what action should be taken against them. 3 On 22 October 2009, Mr Paul Irving, Assistant Commissioner Probity and Staff Development within Corrective Services NSW, wrote to the solicitor representing the PSA confirming that Mr Ken Moroney had been "appointed as the decision maker in relation to all six officers involved in the Facebook matter. To effect this, Mr Moroney has been appointed as a temporary employee of the Department of Justice and Attorney General …." 4 Mr Moroney conducted an investigation into the circumstances involving each of the correctional officers. He wrote to them asking for submissions about the matter. On 17 December 2009, Mr Moroney wrote to each of the correctional officers referring to previous correspondence and indicating that he had formed the opinion that the officer had engaged in misconduct, which was described in the letter. The letter went on to say that Mr Moroney was "now CONSIDERING imposing disciplinary action." He referred to eight possible disciplinary actions available to him, which ranged from a caution or reprimand to dismissal. In the case of some of the correctional officers, the letter indicated that the severest penalty that Mr Moroney would conceivably impose would be "THAT YOU BE ALLOWED TO RESIGN." In the case of one of the correctional officers the letter said that the severest penalty that Mr Moroney would conceivably impose was "DISMISSAL." Each of the letters stressed that Mr Moroney had not yet decided to impose any sanction. He said that before making a final decision, he would consider a number of matters which he set out in the letter including any written or oral submission that each of the correctional officers might wish to make and allowing time for this to occur. 5 The PSA subsequently sought orders in the nature of interlocutory relief in effect restraining the respondent from proceeding with the further conduct of the enquiry into and the taking of any disciplinary action concerning the allegations made against the employees. I should add for completeness that only four employees remain subject to the investigative and potential disciplinary process. 6 In essence, the PSA attacked the ability of Mr Moroney to perform those duties that had been allocated to him by the respondent. There were two bases: firstly, that Mr Moroney was, in some way, not an appropriate person to have been appointed to perform this work and, secondly, that he had not been validly and appropriately appointed to perform that work. 7 As will be seen, it is only the second basis that has any validity and it is not necessary that I deal in any detail with the first basis. The statutory background

8 In order to deal with this matter, it is necessary that I refer to some of the provisions of the relevant statute that governs the work which Mr Moroney had been engaged to carry out. The relevant legislation is the Public Sector Employment and Management Act 2002 ("the Act"). In general terms, the Act is intended to regulate "public sector employment and management". The work that Mr Moroney was engaged to carry out concerned allegations of misconduct against the employees of the respondent. The processes in which Mr Moroney was engaged are covered by s 46 of the Act, which is in the following terms: 46 Dealing with allegations of misconduct

(1) If an allegation is made to the appropriate Department Head that an officer may have engaged in any misconduct, the appropriate Department Head may: (a) decide to deal with the allegation as a disciplinary matter in accordance with the procedural guidelines, or

(b) decide that it is appropriate to take remedial action with respect to the officer. (2) After dealing with an allegation of misconduct as a disciplinary matter in accordance with the procedural guidelines, the appropriate Department Head may, if the Department Head is of the opinion that the officer has engaged in any misconduct, decide to take disciplinary action with respect to the officer.

(3) Before any disciplinary action is taken with respect to an officer under this section, the officer must be given an opportunity to make a submission in relation to the disciplinary action that the Department Head is considering taking.

(4) Even though the appropriate Department Head decides to deal with an allegation of misconduct as a disciplinary matter in accordance with the procedural guidelines, the Department Head may, at any stage of the process: (a) decide to take remedial action with respect to the officer concerned, or

(b) decide to dismiss the allegation, or decide that no further action is to be taken in relation to the matter, or both. (5) A decision under this section by the appropriate Department Head to take remedial action with respect to an officer does not, if it appears to the Department Head that the officer may have engaged in any misconduct while the remedial action is being taken, prevent the Department Head from dealing with the alleged misconduct as a disciplinary matter under this section. 9 This section is contained within Part 2.7 of the Act, which is entitled "Management of Conduct and Performance". There are definitions within s 42 of "disciplinary action" and "misconduct", but it is not necessary, for the purpose of this decision, that I refer to these matters. It is sufficient to observe that the action that may be taken under s 46 is to be carried out by the "Department Head". For relevant purposes, the Department Head is Mr Laurie Glanfield, Director General of the Department of Justice and Attorney General. 10 "Member of staff" of a Division is defined in s 3 as meaning "a member of the group of staff comprising the Division (whether employed as an officer, temporary employee, casual employee or in any other capacity)." 11 I set out hereunder the provisions of s 6 of the Act: 6 The Public Service

(1) The Divisions of the Government Service specified in Part 1 of Schedule 1 comprise the Public Service of New South Wales.

(2) Any such Division may be referred to as a Department (or a Department of the Public Service ) for the purposes of this or any other Act. Accordingly, the person exercising functions as Division Head of such a Division may be referred to as the Department Head . 12 It will be seen that by sub-s (2), the expressions "Division Head" and "Department Head" may be used interchangeably. The parties assumed in their submissions that Mr Glanfield was the appropriate Department Head referred to in s 46 of the Act, and I shall proceed on this basis. 13 S 7 of the Act sets out the categories of employment within the public service and is in the following 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. (3) The usual basis for the employment of staff in a Department is to be the employment of officers.

(4) Subsection (3) does not apply to the employment of staff for the purpose of carrying out work for a political office holder. 14 It will be observed that there is a reference to temporary employees by reference to the provisions of Part 2.4 of the Act. I set out hereunder the provisions of s 27 contained within that Part: 27 Employment of Departmental temporary employees

(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

(f) for any other temporary purpose. (4) The employment of persons under this Part is subject to: (a) section 7 (3), and

(b) any other provision of this Act or the regulations concerning the employment of Departmental temporary employees. 15 I observe at this stage that a person who is a temporary employee is one who is "employed". This is a matter of some significance, and I shall refer to it later in these reasons for decision. 16 Finally, I refer to the power of delegation that is given to a Division Head and which is contained within s 4F. That section is in the following terms: 4F Delegation by Division Head

(1) The Division Head of a Division may delegate to any member of staff of that or any other Division of the Government Service: (a) any of the Division Head's functions under this Act (other than this power of delegation), and

(b) any employment-related functions under any other Act that the Division Head exercises on behalf of the Government of New South Wales in relation to the staff in that Division. (2) If: (a) a function of a Division Head is delegated to a member of staff in accordance with subsection (1), and

(b) the instrument of delegation authorises the sub-delegation of the function, then, subject to any conditions to which the delegation is subject, the person may sub-delegate the function to another member of staff of that or any other Division of the Government Service.

(3) In this section: (a) a reference to the functions of a Division Head includes a reference to any functions delegated to the Division Head under this Act, and

(b) a reference to a member of staff of a Division includes a reference to a person holding an appointment to or in a body or organisation in respect of which a Division of the Government Service is established to enable the body or organisation to exercise its functions. The factual background

17 The factual background was not in contention, although the consequences at law of the facts were very much in controversy. Much of the factual material was in documentary form. Some of it was produced to the Commission by the Department of Justice and Attorney General in answer to a summons for production issued by the applicant, the remainder consisted of affidavits sworn by Paul Irving and Judith Windle on behalf of the respondent. In essence, the summons for production sought all written material "pertaining and in relation to the appointment or employment of Mr Ken Moroney, AO, APM, as a temporary employee of the Department of Justice and Attorney General." The summons also sought documentation relating to the payment of salary and other employment benefits to Mr Moroney. Mr Irving was cross-examined on his affidavit. 18 I now summarise the documentation that became evidence in the proceedings. On 7 October 2009, Mr Irving made a submission to the Director General of the Department of Justice and Attorney General, Mr Glanfield. That submission referred to "disciplinary action against Corrective Services NSW staff" and in particular to the appointment "of external decision maker in relation to disciplinary action proposed to be taken against six correctional officers …." The submission set out the background to the posting of entries onto the Facebook website and investigations carried out to that time. It also referred to the history of the matter before this Commission and sought approval for the appointment of Mr Moroney as a temporary employee and "the delegation of your functions and powers under Part 2.7 of the PSEMA to Mr Moroney for the purposes of these disciplinary matters." A "formal instrument of delegation to Mr Moroney" was attached. 19 On 8 October 2009, Mr Glanfield appended the following material in handwriting to a copy of the submission, namely: I agree that a senior retired public servant should be appointed. Having considered those who might be available in that category I believe Mr Moroney is the most suitable. I approve the appointment of Mr Moroney as recommended and of the delegation of my functions to him as recommended. 20 Also on 8 October 2009, Mr Glanfield signed an "instrument of delegation" delegating his functions under Part 2.7 of the Act to Mr Moroney in respect of the several allegations of misconduct against named officers. The instrument of delegation said that it was to take effect on and from the date of signature, namely 8 October 2009. 21 Mr Irving had previously been in contact with Mr Moroney. Indeed, it seems from Mr Irving's affidavit that he originally contacted Mr Moroney on 24 September 2009 and had a telephone conversation in which he asked Mr Moroney whether he would be interested in investigating and dealing with the allegations made against the correctional officers. He met with Mr Moroney personally on 25 September 2009 and indicated to him that he would be appointed as a temporary employee of the Department of Justice and Attorney General but subject to Mr Glanfield approving his appointment. There appears to have been discussions of a general nature concerning the terms and conditions that would apply to the work to be performed by Mr Moroney. The affidavit states: Mr Moroney agreed to undertake the work of a decision maker in this matter and also the terms and conditions of his appointment. The meeting, which took approximately 2 hours, then concluded. If this is intended to indicate that the meeting on 25 September 2009 dealt comprehensively with all of the terms and conditions under which Mr Moroney would perform this work, and which resulted in agreement about them, then such intention is belied by subsequent communications between Mr Irving and Mr Moroney. 22 On 9 October 2009, at 11.13am, Ms Ball, Acting Director of the Department of Corrective Services, Professional Standards and Administrative Law Branch, forwarded an email to Mr Moroney attaching the instrument of delegation signed by the Director General, and concluding Paul (a reference to Mr Irving) will contact you on Monday to discuss and finalise the terms of your temporary appointment. Letters will be forwarded to you next week with all of the relevant material. 23 Mr Irving forwarded an email to Mr Moroney on 14 October 2009 at 2.03pm referring to the approval by Mr Glanfield of his appointment as a temporary employee pursuant to s 27 of the Act, the fact that Mr Glanfield had delegated functions and powers under Part 2.7 of the Act to Mr Moroney and continuing: I now need to finalise your employment as a temporary employee which will be effective from 8 October 2009. I propose that you be employed on a daily rate of pay of $791.89 and that you be employed on a part-time basis. Would you please advise whether this daily rate of pay is acceptable.

Mr Irving then sought additional information. 24 By email dated 14 October 2009, forwarded at 7.55pm, Mr Moroney indicated that the proposed daily rate was acceptable and queried what was meant by a "day" in terms of hours spent. 25 Mr Irving replied on 15 October 2009 suggesting a meeting at 7.00am on the following Monday, giving some details about the daily rate and basis of calculation and other relevant information. 26 Mr Irving gave a letter to Mr Moroney that, other than referring to "October 2009", is undated. That letter said, in part: I wish to confirm your appointment as a temporary employee of the Department of Justice and Attorney General pursuant to s 27 of the (Act). The letter proceeded: Your engagement as a temporary employee commenced on 8 October 2009 and will continue until you have made final decisions in the Facebook matter in accordance with your delegation. Mr Moroney was asked to sign his acknowledgment in a designated space set out below Mr Irving's signature and designation. Mr Moroney wrote "agree", signed his name and appended the date, being 19 October 2009. I assume this occurred at the meeting held that day. 27 Documentation produced by the Department of Justice and Attorney General indicated that Mr Moroney had a meeting with Mr Irving and another person within Corrective Services NSW on 25 September 2009 but made no claim for payment with respect to that meeting. He was, however, paid for eight hours work carried out on 19 October 2009 and a number of days subsequent to that date. 19 October 2009 is the first day on which Mr Moroney appears to have undertaken any work and for which he was paid. 28 Mr Moroney completed certain documentation relating to his employment with Corrective Services NSW on 19 October 2009 and on that date he also signed a tax file number declaration and pay disbursement authority. 29 The respondent sought to argue in the alternative that a contract of employment with Mr Moroney had been created on 25 September 2009. Such a submission is inconsistent with the events subsequent to 25 September 2009 outlined commencing at [22] above. In evidence, Mr Irving said he made it clear to Mr Moroney that the decision about whether he would be employed would be made by Mr Glanfield. There could not at law be any contract of employment created on 25 September. I would characterise Mr Moroney's acquiescence on that day as being an expression of interest in an offer of employment if made to him. Was the delegation to Mr Moroney valid?

30 Put shortly, the applicant submitted that the power of delegation contained within s 4F can only be made to a person who is a member of staff and such a person had, in effect, to be a person who was an employee under the Act, whether a temporary employee or otherwise. The PSA submitted that at the date of delegation, namely 8 October 2009, Mr Moroney was not and could not have been a temporary employee of Corrective Services NSW and that, in effect, the delegation had pre-dated his employment. 31 The respondent submitted that Mr Moroney became a temporary employee under the Act upon Mr Glanfield writing the words "I approve the appointment of Ken Moroney as recommended …." It was said that ipso facto the writing of those words constituted the "employment" of Mr Moroney under the Act and he thereby became a "member of staff" of the relevant Division. It will be remembered that a member of staff was defined in s 3 by reference to a person who was employed. Accordingly, whether Mr Moroney became a member of staff, and therefore a person to whom certain functions might be delegated under s 4F at the time that Mr Glanfield signed his handwritten notation, will depend upon whether or not Mr Moroney became "employed" at that particular point in time. 32 The answer to this lies in a consideration as to whether a person may become a temporary employee and a member of staff by appointment without any question of acceptance by the temporary employee, or whether, at law, this may only occur where a contract of employment has been entered into which can only come into effect where there has been offer and acceptance in the traditional sense. 33 If it is the former, there is some merit in the respondent's position. If it is the latter, then it is arguable that there was no acceptance of any offer of employment, on the basis of the evidence brought in the proceedings, until 19 October 2009. 34 As I have previously indicated, the resolution of this matter depends fundamentally on whether Mr Moroney became a temporary employee on 8 October 2009 or at some stage after that date. (This assumes that the handwritten notation made by Mr Glanfield had the effect of appointing Mr Moroney as a temporary employee and that the handwritten notation was made before Mr Glanfield signed the instrument of delegation.) 35 It is first necessary to consider what Mr Glanfield may have intended by use of the words "I approve the appointment …." On the one hand, this might be construed as meaning that Mr Glanfield thereby appointed Mr Moroney as a temporary employee. On the other hand, Mr Glanfield may have been referring to an appointment that would be made consequent upon his approval. 36 It appears that Mr Irving thought that the former situation prevailed because the terms of his letter to Mr Moroney were framed as confirming an appointment and the commencement of the engagement as having occurred on 8 October 2009. The letter anticipated Mr Moroney's acquiescence and was not framed in any manner that was conditional upon Mr Moroney's signed acknowledgment. 37 The Commission does not have the benefit of any evidence from Mr Glanfield, and it is therefore difficult to construe what he intended at the time that he wrote those words, which as I have said are capable of reflecting either meaning. If I were to approach the matter unaided by any consideration other than the words used, I would read them as indicating approval of something that was to occur. 38 However, the matter may be resolved, in my opinion, by reference to the statutory context in which the appointment of Mr Moroney was to be effected. 39 There has long been a recognition by the courts of the distinction between appointment of a person to an office that is effected, ipso fact, by the fact of appointment and the engagement of a person under a contract of employment that can only be effected by the communication of an acceptance which is appropriate to an offer. There has been a deal of controversy centred mostly around the public service conducted by the executive arm of government. 40 There is a reference to this controversy in the judgment of Brennan J (as his Honour then was) in the High Court of Australia in Director-General of Education v Suttling [1987] HCA 3; (1987) 162 CLR 427. Mason ACJ and Deane J agreed in the reasons for judgment of Brennan J. 41 At [5] in his reasons for judgment, Brennan J said: 5 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 (1896) AC 575, at p 577; Carey v. The Commonwealth [1921] HCA 54; (1921) 30 CLR 132, at p 137; Lucy v. The Commonwealth [1923] HCA 32; (1923) 33 CLR 229, at pp 238,249,253. However, the contractual nature of the relationship has not been universally accepted: see, for example, Monckton v. The Commonwealth [1920] HCA 3; (1920) 27 CLR 149, at pp 155,156; Lucy v. The Commonwealth , at p 244; Geddes v. Magrath; Morgan v. Geddes (1933) 50 CLR 520, at pp 533- 534; The Commonwealth v. Welsh [1947] HCA 14; (1947) 74 CLR 245, at pp 262,274; and cf. Ryder v. Foley [1906] HCA 61; (1906) 4 CLR 422, at p 440. And sometimes an espousal of one view rather than the other has been avoided: see, for example, Reilly v. The King (1934) AC 176, at p 180; Kodeeswaran v. Attorney-General of 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. The statute itself controls the terms of service: McVicar v. Commissioner for Railways (N.S.W.) [1951] HCA 50; (1951) 83 CLR 521, at p 527. 42 I should observe for completeness that the judges in dissent, Wilson and Dawson JJ, referred to the controversy but did not deal with it in any way. ([1] of their reasons for judgment.) 43 The cases direct attention to the particular statutory provisions that apply to the particular area of the public service. An example is provided by the decision of the High Court of Australia in Jarratt v Commissioner of Police (NSW) [2005] HCA 50; (2005) 224 CLR 44. Those proceedings concerned the purported dismissal from the office of Deputy Commissioner within the Police Service of New South Wales. The Court in the several judgments was required to analyse in some detail the provisions of the Police Service Act 1990 (NSW) that applied to the office of Deputy Commissioner. It is not necessary for present purposes to review those provisions, save to say that the Court was dealing with a very senior officer within the New South Wales Police Service whose appointment was dealt with specifically within the Police Service Act in terms which did not apply to members generally of the New South Wales Police Service. 44 In describing the basis of the relationship between the Deputy Commissioner and the New South Wales Police Service, Gleeson CJ said: 20 Section 41 establishes and defines the relationship between the statutory and the contractual aspects of the position of an officer such as the Deputy Commissioner. The employment of the officer is "governed by" a contract of employment between the officer and the Commissioner, such contract being made by the Commissioner for and on behalf of the Crown, that is, the Crown in right of the State of New South Wales. Although the contract governs the employment, and (pursuant to s 42) deals with such matters as the officer's duties and remuneration, it does not amount to an instrument of appointment, and it does not fix the officer's term of office (s 41(3)). Section 40 provides that, subject to the Act, an executive officer holds office for such period (not exceeding five years) as is specified in the officer's instrument of appointment. In the present case, the applicant was, by his instrument of appointment, to hold office for five years. That was reflected in his contract of appointment, but was not itself a term of the contract. He held office by virtue of the Act and the appointment made under the Act, and his term of office, by virtue of s 40, was five years, subject to the Act, which, for present purposes, means subject to s 51. 45 There is reference in the judgments of the High Court in Jarratt to a decision of the Canadian Supreme Court of Wells v Newfoundland [1999] 3 SCR 199. That case was discussed also by Rothman J in the Supreme Court of New South Wales in Downe v Sydney West Area Health Service (No 2) [2008] NSWSC 159. Rothman J was considering the circumstances of a senior specialist medical practitioner employed within the New South Wales health system, in the context of a consideration of powers of dismissal and as to whether they were based on statute or were contractual. At [314] to [318], Rothman J said: 314 The kernel of the approach adopted by the Canadian Supreme Court is whether the relationship between the individual and the Crown can be characterised as one of officer or employee. The Court distinguished between government positions of "monarchical patronage" (described as a "personal servant of the Crown" (at 209)) and the majority of government jobs, which could be better described as "public employee" - which, in substance, constitutes a contractual relationship. In the Canadian proceedings, Wells occupied a "senior public position of quasi-judicial responsibility" rather than a personal servant. The Court then remarked: "While the terms and conditions of the contract may be dictated, in whole or in part, by statute, the employment relationship remains a contract in substance and the general law of contract will apply unless specifically superseded by explicit terms in the statute or the agreement."

315 Such an approach would, with respect, reconcile the old cases relating to Crown privilege and the more modern approach to public employment. It is a distinction embodied in the difference between s 116 of the Health Services Act and other appointments under that Act and the distinction between s 25 of Area Health Services Act and the other appointment powers to which reference has been made.

316 The construction of the Acts (whether the Act in 1986 or 1987 (as amended in 2006)) discloses a distinction drawn between appointments by the Governor, Minister or the like to "executive positions" or "statutory positions" and "appointment and employment" or "employment" under terms and conditions of employment, either determined by the relevant employing authority or fixed by award and/or agreement.

317 This distinction reflects the distinction between the "monarchical privilege" and "public employee". It is not a dissimilar distinction to that between senior administrative officers, on the one hand, and ordinary employment on the other. It is a distinction also similar to the distinction between an officer appointed as such by the Crown to exercise statutory powers and discretions and employees who are employed for the purpose of providing a service of the Crown.

318 In the instant legislative provisions, the specific provisions requiring appointment pursuant to a contract of employment override the general provisions that may otherwise import a right to suspend and/or remove without regard to the express or implied terms of employment. 46 I respectfully adopt the approach of Rothman J as embodying the appropriate approach to construction of the engagement of Mr Moroney in the circumstances of these proceedings. 47 S 7 sets out the categories of employment within the public service referring to employment as officers "being persons employed in chief or senior executive positions or other staff positions", temporary employees and casual employees. All of these persons are said to be "employed". This language is to be contrasted with the reference in the Act to the appointment of officers to "positions in the public service" which is referred to in specific terms in ss 17 and following. 48 The use of the word "employ" is, prima facie, a reference to employment as understood according to common law concepts. I can find nothing in the Act that would point to a contrary intention. There is, in particular, no language used in the Act that would indicate, in my opinion, that there was an intention to create a power of appointment of a person as a temporary employee. This is to be compared with the power to appoint a person to a particular position within the public service which may be designated, for example, by reference to a particular title or to a particular position within a classification structure utilised within the public service. 49 The provisions of the Act may be contrasted with detailed provisions concerning the appointment of office holders in other legislation including, in particular, the Police Act as described by the High Court in Jarratt. 50 Accordingly, it may be deduced that the Act operates so as to require the engagement of temporary employees by way of a contract of employment, which in turn requires appropriate acceptance of an offer communicated to the offeror. 51 There is no suggestion on the evidence adduced in the proceedings that in some way Mr Moroney had made any offer to accept employment if made available to him. The evidence particularised in [22] to [26] above establishes that prior to 19 October 2009 there was no agreement about the time during which work would be performed or any rate of remuneration. The evidence was to the effect that the employment was yet to be "finalised", and that this occurred on 19 October when Mr Moroney accepted his appointment as a temporary employee in writing. The evidence therefore is that the letter of Mr Irving constituted an offer to Mr Moroney, which was accepted by him on 19 October 2009. On this basis, Mr Moroney became a temporary employee pursuant to a contract of employment made on 19 October 2009. He was not a temporary employee on 8 October 2009. 52 The respondent sought to rely on the decision of the High Court of Australia in Visscher v The Honourable President Justice Giudice [2009] HCA 34 in submitting that it was possible for an employment relationship to be created prior to parties entering into a contract of employment. In Visscher, the majority judgment (Heydon, Crennan, Kiefel and Bell JJ) clearly differentiated between the "concepts of termination of an employment relationship" and "the discharge of a contract of employment." Their Honours said: 53 … The concepts are different. It does not follow from the fact that a wrongful dismissal is effective to bring the employment relationship to an end that it thereby discharges the contract of employment. In Byrne v Australian Airlines Ltd it was said that:

"It does not appear to have been doubted in this country that a wrongful dismissal terminates the employment relationship notwithstanding that the contract of employment may continue until the employee accepts the repudiation constituted by the wrongful dismissal and puts an end to the contract. That was accepted by both the majority and minority in Automatic Fire Sprinklers Pty Ltd v Watson ...". ([1995] HCA 24; (1995) 185 CLR 410 at 427 per Brennan CJ, Dawson and Toohey JJ) And in one of the passages from Automatic Fire Sprinklers Pty Ltd v Watson to which reference was made in Byrne v Australian Airlines Ltd , Latham CJ said: "An employer terminates the employment of a servant when he dismisses him, though, as I say hereafter, such a dismissal does not put an end to the contract between the parties. An argument that a dismissal because wrongful was a nullity was raised and rejected in both Williamson's Case ( Williamson v The Commonwealth [1907] HCA 60; (1907) 5 CLR 174 at 185) and Lucy's Case (Lucy v The Commonwealth [1923] HCA 32; (1923) 33 CLR 229 at 237, 248, 249, 252 and 253)." ( Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435 at 454; cited in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 427.)

And Dixon J said: "... there is nothing in the general law preventing the wrongful dismissal of a servant operating to discharge him from service, notwithstanding that he declines to accept the dismissal as absolving him from further performance but keeps the contract open and remains ready and willing to serve." ( Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435 at 469; cited in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 427). As was said in Byrne , the position was not always so clear in England ( Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 427). For a time the opinion was maintained that contracts of employment are sui generis, in that certain forms of repudiation are effective automatically to terminate them without the need for their acceptance. (See for example Vine v National Dock Labour Board [1957] AC 488 at 500 per Viscount Kilmuir LC; Sanders v Ernest A Neale Ltd [1974] EW Misc 1; [1974] ICR 565.) But, as has been observed, the theory was later rejected in favour of the "elective theory of termination". (McMullen, "A Synthesis of the Mode of Termination of Contracts of Employment", (1982) 41 Cambridge Law Journal 110 at 121, see also at 118; and see Gunton v Richmond-upon-Thames London Borough Council [1980] ICR 755.) Such an approach accepts as correct the general principle in contract law that acceptance by the innocent party of a repudiation is necessary to terminate a contract. ( Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd [1954] HCA 25; (1954) 90 CLR 235 at 250 per Kitto J; Holland v Wiltshire [1954] HCA 42; (1954) 90 CLR 409 at 419 per Kitto J; Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14; (1985) 157 CLR 17 at 48 per Brennan J; Foran v Wight [1989] HCA 51; (1989) 168 CLR 385 at 395 per Mason CJ, 421 per Brennan J, 441 per Dawson J; see also White and Carter (Councils) Ltd v McGregor [1961] UKHL 5; [1962] AC 413 at 427 per Lord Reid, 432 per Lord Morton of Henryton.) 53 The subsequent paragraphs in the joint judgment reinforce the comments made in the portion of the judgment extracted above. 54 It is sufficient for present purposes to emphasise the distinction between the employment relationship and the contract of employment. The respondent's submission seized on the judgment in Visscher to the effect that "the continued existence of the contract of employment was not dependent upon the continuation of the employment relationship." The respondent then proceeded to submit: By parity of reasoning, it may also (be) (sic) possible for an employment relationship to be created prior to the formal execution of a contract of employment. This proposition is a fortiori in a case, such as the present one, where the employment relationship is created as a result of the exercise by the Department Head of a power vested in him by statute. 55 There is then a reference in the respondent's submission to [71] of the judgment in Visscher with the observation that "the common law of contracts, and the manner in which such contracts are normally made or terminated, gives way to the exercise of a power vested by statute." 56 There are, in my opinion, some fundamental reasons why these submissions cannot be accepted. Firstly, as I understand the basic legal principles, an employment relationship is always regarded as being based in contract absent any statutory provision that might indicate to the contrary in a particular situation. There is no such statutory provision that would arguably apply in the circumstances of these proceedings, or at least neither party has been able to suggest that there is any such provision contained within the Act. Accordingly, for Mr Moroney to become a temporary employee, there must have been in existence a contract of employment. A contract of employment, like any other contract recognised at law, will only come into existence where acceptance of an offer has been communicated to the offeror. There can be no argument against the proposition that a contract of employment may survive notwithstanding the termination of the employment relationship, as is abundantly clear from the judgment of the High Court in Visscher and, indeed, many other well-known authorities dealing with the law of employment. But this does not mean that it is possible for an employment relationship to be created prior to the formal execution of a contract of employment, as contended for by the respondent. If an employment relationship can only, relevantly, be created by the making of a contract of employment, then it cannot be possible for an employment relationship to be created prior to the making of the contract of employment. What is important is the creation of the contract. If the respondent's submission is intended to refer to some formal execution of a written contract that is undertaken to confirm a contract already entered into, then there can be greater sympathy for the respondent's submission. However, a submission framed in those terms must necessarily direct attention to a contract of employment already created. This would, in turn, direct attention to the necessity to identify the communication of the acceptance of an offer. The only evidence available in these proceedings is that there was no such communication of any acceptance of an offer to enter into a contract of employment until 19 October 2009. Can s 4F operate in futuro?

57 The respondent submitted that s 4F may be construed as allowing delegation to a person who subsequently becomes a member of staff. That is, even though Mr Moroney may not have been a member of staff at the time of the delegation made by Mr Glanfield, upon him so becoming a member of staff, the delegation became effective. 58 A similar argument was considered by Osborne J in the Supreme Court of Victoria in R v Ashby [2010] VSC 14. The legislation under consideration was the Police Regulation Act (1958) (Vic). This legislation permitted the Director of Police Integrity to delegate certain powers under the Act to a person. Such a person must be a member of staff of the Office of Police Integrity or, alternatively, a person who has taken an oath or made an affirmation of a kind prescribed. The Director purported to delegate certain powers to Mr Murray Wilcox QC. However, as at the date of the purported delegation to Mr Wilcox, he had not taken the relevant oath or made the relevant affirmation. Indeed, he did not do so until the day after execution of the instrument of delegation. 59 In dealing with the submission of the defendant in those proceedings that Mr Wilcox had not been validly appointed to exercise the powers which were purported to be delegated to him, Osborne J said: 32 The submission falls to be considered in accordance with accepted principles of statutory construction. These include those stated by the majority of the High Court in Project Blue Sky Inc and Ors v Australian Broadcasting Authority (1998) 194 CLR 355. 69 The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos , Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.

70 A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

71 Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent". 33 A construction that would promote the purposes or object underlying the Act is to be preferred to a construction which would not promote that purpose. ( Interpretation of Legislation Act 1984 s 35)

34 Although upon the particular facts of this case the result may appear arbitrary, I have come to the view that the construction of the relevant statutory provisions relied on by the defence is correct. This analysis accords with the plain meaning of the language of the section, gives effect to each word of the section and attributes a meaning supported by its context.

35 I turn first to the language of the section. The section does not utilise the format of s 102(D)(1) and (2). It does not in terms require an oath before the delegate performs any duties. Rather it defines the class of persons who may be appointed by instrument and does so by reference to two categories of persons. The first category constitutes members of staff of the OPI and the second category comprises persons who have taken the oath or made an affirmation. The condition imposed in respect of relevant persons relates to the act of delegation and not the subsequent exercise of power. (Compare the concept of 'eligible person' as provided for in s 102AB of the PR Act as amended by Act No. 67 of 2007.)

36 The word 'has' connotes a clear temporal requirement. (Cf Mine Subsidence Board v Wambo Coal Pty Ltd (2007) 154 LGERA 60, [42] per Tobias JA). It is envisaged the proposed delegate will be a relevant person as defined at the time of appointment. This is hardly surprising given the nature of the powers in issue. Further it imposes no undue burden upon the Director because it is before the Director that the oath must be taken or the affirmation made.

37 The contrary view that a delegate may qualify after the delegation does not give full effect to each word adopted in the section. It does not maintain the requirement that the delegate be a relevant person at the time of appointment by instrument as sub-s (1) provides. It treats the requirement that a relevant person be one 'who has taken an oath or made an affirmation' as somehow having a conditional prospective meaning, when this phrase in terms describes an existing state of affairs.

38 The context of the section supports the construction for which the defence contends in a series of ways: (a) the powers being delegated are those of the Director, and hence the most significant powers exercised under the Act;

(b) those powers are exercisable for objects which are of the highest public importance;

(c) the powers are extensive and potentially intrude significantly upon the rights and obligations of members of the police force and the public;

(d) the requirement for an oath or affirmation fits within a series of sequential provisions, relating to oaths and affirmations by the Director, staff and persons engaged to provide services. It is expressed in terms which take up the possibility that under s 102D(3) the Director may require a person engaged to provide services to take the oath or make the affirmation, and require jurat as a precondition to delegation;

(e) as I have said such an oath or affirmation must itself be effected before the Director or Acting Director pursuant to s 102D(4). The relevant precondition is readily given effect to by the Director and compliance with it is something which would ordinarily be within the Director's knowledge.

39 The contrary construction for which the prosecution contends is that the requirements of s 102F are met if the relevant oath is sworn or the relevant affirmation made at any time prior to the exercise of delegated power. This construction carries with it the consequence that there is a period (potentially an extended one) in which the relevant instrument purports to effect a delegation, but no delegation has in fact taken place because the requirement for an oath or affirmation has not been met. In turn there is an inherent risk that a purportedly effective instrument of delegation is taken to be such when in fact it is not underpinned by the relevant oath or affirmation. I do not accept this was the intention of the legislature. What was intended was that the Director's very significant powers be delegated in consequence of an instrument only to a relevantly qualified person. It was not intended that the validity of the delegation depend upon subsequent collateral events. Nor was it intended that a purported delegation by instrument might not have effect.

40 The requirement for the delegation to be by instrument provides for certainty, which protects the interests of all the parties concerned. (Cf B v Victorian Lawyers RPA Limited [2002] VSCA 204; (2002) 6 VR 642, [39], 657; Parks Holdings Pty Ltd v Chief Executive Officer of Customs [2004] FCA 820, [99].) The apparent legislative purpose of the further requirement with respect to relevant persons is to ensure delegation is made only to persons having the relevant qualification in respect of the oath or affirmation. (Cf R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263, [34], 271, per Bell J, applied in R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10.)

41 The conditions imposed on the power to delegate the Director's powers are properly viewed as procedural safeguards for persons affected by the delegation. As such, they should not be construed narrowly. (Cf B v Victorian Lawyers RPA Limited [2002] VSCA 204; (2002) 6 VR 642, [38], 656.)

42 The statutory conditions in issue confine the power to delegate. They do not go to terms of the delegation. (Cf s 42A Interpretation of Legislation Act 1984.) 60 I would, with respect, adopt the same approach to construction as Osborne J in the context of a consideration of the provisions of the Act. 61 Although there is no reference to delegation to a person who has done anything, there is a reference to a person who has a particular status, namely who is a member of staff. The natural meaning of the words as used is indicative, in my opinion, that this is a reference to a person who is, at the time of delegation, a member of staff. Indeed, given the functions of a Head of a Division in the context of the management of the public service, it would be surprising if the legislation intended that there be a power of delegation to any person who was not, at the time of delegation, a member of staff of either the particular Division or any other Division. The power of delegation covers any of the functions of the Head of the Division and must therefore be seen to be a wide one. Furthermore, as noted by Osborne J, the powers are exercisable "for objects which are of the highest public importance", and the powers "potentially intrude significantly upon the rights and obligations" of members of the public service. 62 Osborne J rejected an argument by the prosecutor that the appointment could operate in futuro conditional upon the provisions of the Act being complied with. His Honour rejected any construction that would create a situation where someone's power would be, in effect, in limbo conditional upon a further step being taken, as required by the Act. In the context of these proceedings, it is arguable, on the basis of the evidence, that Mr Moroney did not formally accept the offer of employment until 19 October 2009. If the respondent's submission was to be accepted, then in the intervening 11 days, Mr Moroney was a temporary employee in waiting with delegated authority conditional upon his formal appointment as a temporary employee. Given my understanding of the purpose of the legislation and, in particular, the carefully framed provisions contained within Part 2.7 dealing inter alia with misconduct, I cannot agree that s 4F should be construed in the manner contended for by the respondent. Conclusion as to Mr Moroney's delegated functions

63 Accordingly, I conclude that the purported delegation made by Mr Glanfield under s 4F of the Act was invalid. It could only be made at law to a member of staff of a Division of the Government Service. As at 8 October 2009, Mr Moroney was not a member of staff of any Division of the Government Service and did not become so until later. The delegation was therefore ineffective. Mr Moroney was not empowered to do anything under s 46 of the Act. Other submissions by the PSA

64 The PSA sought to argue that in some way the delegation to Mr Moroney was ineffective because, as I understood it, a person could not be appointed a temporary employee for the sole purpose of having delegated to him a particular function, namely that of investigating and dealing with allegations of misconduct. I can see no provision in the Act that would support any such submission. The PSA did not point to any provision in the Act that would support such a conclusion. The submission seems to have been put as a matter of policy or philosophy. I can see no basis in law to support such a submission and I reject it. The relief to be granted

65 The applicant relied upon the provisions of ss 136 and 137 of the Industrial Relations Act and on the provisions of s 89(7) of the same Act. 66 It was asserted by the applicant that, in the context of the dispute notification proceedings, an order of the kind sought would be justified under both s 136(1)(d) and s 137(1)(c). 67 In the context of the unfair dismissal proceedings, it was asserted by the applicant that s 89(7) empowered the granting of relief either alone or when considered concurrently with the provisions of s 136(1)(d). 68 I set out hereunder ss 136, 137 and 89 of that Act. 136 Arbitration of dispute

(1) The Commission may, in arbitration proceedings, do any one or more of the following: (a) make a recommendation or give a direction to the parties to the industrial dispute,

(b) make or vary an award under Part 1 of Chapter 2,

(d) make any other kind of order it is authorised to make (including an order made on an interim basis). (2) Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute.

(1) The Commission may make the following kinds of dispute orders when dealing with an industrial dispute in arbitration proceedings: (a) The Commission may order a person to cease or refrain from taking industrial action.

(b) The Commission may order an employer to reinstate or re-employ any one or more employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute.

(c) The Commission may order an employer not to dismiss employees in the course of the industrial dispute if the employer has threatened to do so.

(d) The Commission may order a person to cease a secondary boycott imposed in connection with the industrial dispute. (2) If employees are taking industrial action in connection with the industrial dispute, the Commission may order the employees to cease taking that industrial action before it makes any other kind of dispute order against the employer.

(3) A dispute order may not provide for the payment of compensation, lost remuneration or any other amount.

89 Orders for reinstatement, re-employment, remuneration, compensation

(1) Reinstatement The Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed.

(2) Re-employment If the Commission considers that it would be impracticable to reinstate the applicant, the Commission may order the employer to re-employ the applicant in another position that the employer has available and that, in the Commission's opinion, is suitable. (3) Remuneration If the Commission orders reinstatement or re-employment, it may order the employer to pay to the applicant an amount stated in the order that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated or re-employed in accordance with the order.

(4) Continuity If the Commission orders reinstatement or re-employment, it may order that the period of employment of the applicant with the employer is taken not to have been broken by the dismissal.

(5) Compensation If the Commission considers that it would be impracticable to make an order for reinstatement or re-employment, the Commission may order the employer to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed. If the applicant was on leave without full pay during any part of that period, the maximum amount of compensation is to be determined as if the applicant had received full pay while on leave.

(6)When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration received in alternative employment, or that would have been payable if the applicant had succeeded in obtaining alternative employment.

(7) Threat of dismissal In determining a claim relating to a threat of dismissal, the Commission may order the employer not to dismiss the employee in accordance with that threat.

(8) An order under this section may be made on such terms and conditions as the Commission determines. 69 The provisions of ss 136 and 137 were considered by a Full Bench of this Commission in Sydney Water Corporation v Australian Services Union [2005] NSWIRComm 305. The Full Bench applied the approach to the grant of interlocutory relief set out in the decision of Schmidt J in Hill v Director-General of the Department of Education and Training (NSW) [1998] NSWIRComm 622; (1998) 85 IR 201. There can be no doubt that this Commission does have power in appropriate circumstances to grant interlocutory relief of the kind now sought by the applicant. In Hill, Schmidt J applied what may be regarded as the orthodox approach to the granting of such relief that is typified by the judgment of the High Court of Australia in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148. At [11], Mason ACJ (as his Honour then was) said: 11 The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction. 70 I should add that Schmidt J in Hill was considering an application brought under s 89(7). In Sydney Water Corporation, the Full Bench was considering applications for interlocutory relief sought under ss 136 and 137. As the Full Bench stated, the circumstances that need to be taken into account in determining whether to grant relief in the context of an industrial dispute may be significantly different from those applying to unfair dismissal proceedings. 71 In the context of the circumstances which pervade these proceedings, I would adopt the wider approach referred to in the Full Bench decision in Sydney Water Corporation, albeit that it is the threatened dismissal of one of the four correctional officers and a threat that the other three may be asked to resign that is at the heart of both the dispute notification and the unfair dismissal applications. In essence, I have concluded that the purported delegation made by Mr Glanfield to Mr Moroney was ineffective. Accordingly, the action which Mr Moroney purported to take pursuant to the delegation is invalid. In these circumstances, it would be both unjust and inappropriate for Corrections New South Wales to proceed to take any disciplinary action against any of the officers concerned based on anything done by Mr Moroney pursuant to the invalid delegation. This mandates the granting of the relief sought. If I failed to do so at this stage, I would, in effect, be seen to be condoning a further course of conduct that was unlawful. 72 In stating this, I refer again to the letters forwarded by Mr Moroney to each of the officers concerned, dated 17 December 2009, indicating that he had formed the opinion that each of them had engaged in misconduct as specified and that he was at that stage considering imposing disciplinary action, referring to eight possible disciplinary actions available to him. These were said to range "from a caution or reprimand to DISMISSAL." In the case of one officer, Mr Moroney said, "In relation to this matter, the severest penalty I would conceivably impose is DISMISSAL." 73 This letter would, in my opinion, constitute a threat of dismissal in the sense in which it is used in s 89 of the Industrial Relations Act. 74 During the course of submissions, the respondent was equivocal as to the likelihood of acting upon any relief that the Commission might grant in favour of the applicant. Lest there be any doubt, I should make it clear that if the respondent indicated that it was not prepared to comply with the orders which I intend making other than by way of seeking leave to appeal, I would consider any application brought by the applicant for declaratory relief under s 154 of the Industrial Relations Act and for that purpose would constitute myself as the Industrial Court of New South Wales. 75 The respondent expressed concern that the interlocutory application with which the Commission is dealing was brought by the PSA "for the sole purpose of attempting to delay and frustrate the disciplinary process which was put in place to deal with serious allegations of misconduct against a number of Correctional Officers." The position adopted by the PSA was said to raise "the practice of technical obstructionism to a new level". I can well understand the frustration that the respondent must be experiencing because the disciplinary action, which it has sought to take against the correctional officers, has now been the subject of two interlocutory applications. However, one might also express concern about the circumstances of the correctional officers whose continued employment is arguably in jeopardy until the outcome of the disciplinary action and any further unfair dismissal proceedings in this Commission is known. The fact is, however, that after the first interlocutory application the respondent undertook a different course of action without requiring this Commission to make a decision, and, as I have found, its subsequent effort to deal with the matter is fundamentally flawed. The frustration of the respondent's efforts to deal with the circumstances of the correctional officers concerned is a matter to be deplored but cannot be validly used, in my opinion, to allow the Department to proceed on a path that is contrary to law. I observe that it would have been a simple matter for the respondent to have had Mr Moroney retained to conduct the investigative processes and to allow Mr Glanfield to have determined what disciplinary action should follow. Alternatively, it would have been a simple matter for the respondent to have engaged Mr Moroney as a temporary employee and then arranged for the necessary delegation to have been given to him. Orders 76 The orders that I make are as follows: 1. The respondent is restrained from dismissing or taking other disciplinary action with respect to allegations of misconduct against Anita Malesevic, Owen Garing, Matthew Moore and David Walker based on or as a result of any determination of misconduct made by Mr Ken Moroney pursuant to purported delegation made to him by Mr Laurie Glanfield on 8 October 2009. 2. Liberty to apply at short notice.

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